[Ads-l] Emoluments & Corpus Linguistics

Baker, John JBAKER at STRADLEY.COM
Thu Jan 31 18:21:36 EST 2019


The brief has received criticism from Carissa Byrne Hessick of the University of North Carolina School of Law, https://prawfsblawg.blogs.com/prawfsblawg/2019/01/corpus-linguistics-comes-to-the-fourth-circuit-and-thats-not-a-good-thing.html, whose post includes links to criticism she has posted elsewhere of corpus linguistics as a tool of statutory interpretation.  She also questions whether corpus linguistics is properly characterized as "scientific investigation."  I don't find most of her comments very convincing, but some of them do give me pause.


John Baker



From: American Dialect Society [mailto:ADS-L at LISTSERV.UGA.EDU] On Behalf Of Shapiro, Fred
Sent: Wednesday 30 January 2019 8:04 PM
To: ADS-L at LISTSERV.UGA.EDU
Subject: Emoluments & Corpus Linguistics

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One of Donald Trump's many alleged misdeeds is violating the emoluments clause of the Constitution. The Washington Post reports that two linguistic scholars have used corpus linguistics to marshal evidence supporting the position taken by the Maryland and D.C. attorneys general who are suing Trump:



"Clark D. Cunningham<https://law.gsu.edu/profile/clark-d-cunningham/<https://law.gsu.edu/profile/clark-d-cunningham/>>, a law professor at Georgia State University, and Jesse Egbert<http://oak.ucc.nau.edu/jae89/<http://oak.ucc.nau.edu/jae89/>>, a Northern Arizona University linguist, used a technique called "corpus linguistics"<http://www.linguistics.ucsb.edu/faculty/stgries/research/2009_STG_CorpLing_LangLingCompass.pdf<http://www.linguistics.ucsb.edu/faculty/stgries/research/2009_STG_CorpLing_LangLingCompass.pdf>> (I know, it sounds like a singer in a punk band) to establish how the word emoluments was used around the time the Constitution was being written (n.b., not everybody is sold<https://prawfsblawg.blogs.com/prawfsblawg/2019/01/corpus-linguistics-comes-to-the-fourth-circuit-and-thats-not-a-good-thing.html<https://prawfsblawg.blogs.com/prawfsblawg/2019/01/corpus-linguistics-comes-to-the-fourth-circuit-and-thats-not-a-good-thing.html>> on the methodology).


<https://www.latimes.com/opinion/enterthefray/<https://www.latimes.com/opinion/enterthefray/>>

In an amicus brief, they wrote<https://www.washingtonpost.com/maryland-v.-trump-amicus-brief/47e48de1-66e1-4592-8952-28b80f446122_note.html?questionId=4e66df4c-65ea-4e22-be94-bf5e87aa4036&utm_term=.a34fbf46d272<https://www.washingtonpost.com/maryland-v.-trump-amicus-brief/47e48de1-66e1-4592-8952-28b80f446122_note.html?questionId=4e66df4c-65ea-4e22-be94-bf5e87aa4036&utm_term=.a34fbf46d272>> that they discovered that the word had such broad meaning then that it often required a modifier to specify what sort of emolument, or payment, was being discussed. The comparison they used is to the word fork. Most people take "fork" to mean an eating utensil made of metal, which is why we don't generally put the word "metal" in front of fork - but we do distinguish plastic forks and wooden forks.

Through a search of 95,000 texts from the late 18th century, the scholars found that "emolument was consistently used and understood as a general and inclusive term," and that it "was modified with additional information, in the form of adjectives and prepositional phrases, approximately twice as often as the average noun."

The modifiers distinguished "official" emoluments from general emoluments, and private from public ones. Cunningham and Egbert concluded that if the Framers of the Constitution had intended to limit the ban on emoluments to official payments, as the Justice Department insists, they likely would have made that distinction in the text.

But they didn't."



Fred Shapiro



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