Author:Phillips, James C.

INTRODUCTION I. BACKGROUND A. Lucia v. SEC B. Professor Mascott's Research II. CORPUS LINGUISTICS & THE DATA A. The Purpose of Corpus Linguistics B. Tools of Corpus Linguistics C. COFEA D. This Article's Three Mini-Corpora E. The Limitations of Founding-Era Dictionaries III. FINDINGS A. Founding-era Dictionary Definitions B. COFEA and Public Employment C. Public or Civil Officers D. And Other Officers E. Officers of Government F. Officer(s) Clusters G. Officer(s) of the United States H. Officers and Clerks IV. CAVEATS V. CONCLUSION INTRODUCTION

With the Supreme Court's decision in Lucia v. SEC (1) this past June, the Court had a chance to revisit the meaning of "Officers of the United States." (2) However, it largely punted, with only Justice Clarence Thomas seriously engaging with the term's original meaning. In so doing, he relied on recent scholarship by Professor Jenn Mascott that contends that the term's original meaning is much broader, encompassing anyone employed by the government who has a continuing duty.

To arrive at that conclusion, Professor Mascott performed "corpus linguistic-like" analysis on the papers of six founders, covering 1783-1789, a total of about 7.7 million words from 16,000 texts. (3) However, by using the new beta version of the Corpus of Founding Era American English ("COFEA"), we take this analysis one step further in several different dimensions. First, by using the entire COFEA, we expand the time period of our inquiry to 1760-1799. Second, across this time period, we look not only at these six Founders' papers, but also other documents in COFEA from the Evans Early American Imprint Series, which contains texts from more ordinary Americans, a wider variety of types of texts, and on a wider variety of subjects than the founders' writings. Finally, we look at legal documents from Hein Online's collection. In all, these three different sources consist of about 150 million words from nearly 120,000 texts. Third, we expand our search beyond just "officer^)" or "officer(s) of the United States" to include officer within 5 words of the words "public" or "civil"; other "officers) of (the) (federal) government"; "officer(s) of (the) (federal) government"; and variations on "publicly employed." We sample approximately 150 instances from each of these four searches, balancing across all three sources (Founders, Evans, and Hein).

We find the linguistic landscape to be messy, but more in line with Professor Mascott's proffered definition than the Supreme Court's ahistorical one, though this conclusion is not without some limitations. In so doing, we model how corpus linguistic analysis looks quite different when the question is not which of multiple senses is the most common, but rather what the breadth of the meaning a term encompasses. This application broadens the use of corpus linguistic tools to determining constitutional meaning beyond what it has been used for in the past.


    1. Lucia v. SEC

      In Lucia, the Court was faced with the question whether Securities Exchange Commission administrative law judges ("ALJs") were inferior officers under the Constitution, and thus cannot be appointed, as they have been, by SEC staff members. To answer this question the Court had to answer the long-vexing question of who exactly is an officer of the United States. The case produced four opinions. The dissenting opinions by Justice Breyer and Justice Sotomayor make little to no analysis of the original public meaning of "officers of the United States." In the majority opinion, Justice Kagan acknowledges that the central issue of the case is interpreting the Appointments clause, but she argues that there is no need to further spell out the meaning of the clause because Lucia can be resolved by relying on the precedent set by Freytag v. Commissioner, (4) Justice Kagan writes that the ALJs relevant to Lucia are "near-carbon copies" of special trial judges

      of the U.S. Tax Court dealt with in Freytag. (5) The rest of Kagan's majority opinion argues for the parallels between the tax court judges and ALJs. Both hold continued office, exercise significant discretion, and carry out important functions.

      Justice Thomas was the only Justice willing to engage with the question of what the original meaning of "officers of the United States" means. In a short concurring opinion, with Justice Gorsuch joining, Justice Thomas agreed that Lucia closely parallels Freytag, and that for this case alone Freytag is sufficient to reach a decision. But he argues that although elaborating on the significant authority test from Buckley v. Valeo (6) may not be necessary to decide this case, doing so would be useful in providing guidance for future cases that do not parallel Freytag as closely as Lucia does. Justice Thomas argues that the best way to answer this question is by determining the original public meaning of "officers of the United States." Citing to Federalist 76 and relying heavily on Professor Mascott's research, Justice Thomas concludes that the original public meaning encompasses all federal civil officials.

      According to Justice Thomas, the phrase's meaning to the founders would include all federal officials "with responsibility for an ongoing statutory duty." (7) Thus, to the Founders, the term would "encompass all federal civil officials who perform an ongoing, statutory duty--no matter how important or significant the duty." (8) And in Justice Thomas's view, "[t]he ordinary meaning of 'officer' was anyone who performed a continuous public duty." (9) So an officer of the United States was "someone in 'a public charge or employment' who performed a 'continuing' duty." (10) Justice Thomas again relies on Professor Mascott for evidence that "officers of the United States" is not a term of art, but simply means federal officers, as well as to show that even those with simply "ministerial ... duties" were also considered officers at the time of the Founding. (11)

    2. Professor Mascott's Research

      In an attempt to provide a test that will yield consistent results across courts, Mascott identified the original meaning of "officers of the United States," from Article II of the Constitution. (12) Mascott used a research technique called corpus linguistics in addition to canvassing the historical record, allowing her to get an overall sense of what "officer" meant in the 18th century. (13) Mascott's conclusion challenges the traditional interpretation that the Appointments Clause applies only to those government officials exercising "significant authority."

      In contrast to previous legal applications of corpus linguistics, which mainly attempted to decide between a limited number of predetermined senses, Mascott's use of the methodology was more open-ended. She endeavored to answer the broad question of what "officer" meant during the founding era. (14) The results of her analysis point to a much broader interpretation that would include all government employees who have any extended government responsibility. (15)

      To reach that conclusion, Mascott first showed that "officers of the United States" is indeed ambiguous. She provides evidence that this phrase is not a term of art (16) and that "officer" does not seem to have any special meaning in the Constitution. (17) Therefore, "officer," as used in Article II, should be interpreted according to its ordinary public meaning during the Founding. To understand public meaning, Mascott first turned to dictionaries and corpus linguistics. She used ten Foundingera dictionaries, as well as commentaries and legal dictionaries. The dictionaries suggest that an "officer" was anyone who held some type of public office or government duty. (18) The importance or prestige of the person's office seemed to have no impact on whether or not he was labelled as an officer. Mascott also employed Nathan Bailey's New Universal Etymological Dictionary of English as a sort of linguistic corpus, searching the dictionary for every time it used "office(s)" and "officer(s)." Those results suggest that "officer" was also used for less prestigious jobs like record keepers, assistants, and employees with menial responsibilities. (19)

      Mascott also performed searches of Elliot's Debates, the Federalist and Anti-Federalist Papers, Farrand's Records, and an early version of the Corpus of Founding Era American English. She searched for both "officer" and "officer(s) of the United States." Mascott coded each concordance line neutrally, not trying to fit the meaning of each instance into one of several predetermined senses. (20) Rather, she examined the context and noted how the key term was used, especially with regards to power and importance. While there are occasional examples that give evidence for a narrower interpretation of "officer," overall the evidence suggests that "officer" should be given a broader interpretation, one that includes public employees of lower rank. COFEA's collocate searches show that "officer(s)" and "office(s)" frequently co-occur with words that do not denote importance of power of position, such as "auditors," "clerks," and "subordinate." (21)

      In addition to dictionary and corpus searches, Mascott also researched the historical record. In particular, she examined the appointments that occurred in the Continental Congress and First Federal Congress, as well as the statutes passed in the relevant time period. Mascott also analyzed the workings of the departments of the executive branch of the federal government, including payroll lists and other documentary records. (22) Overall, these inquiries also show that "officer" had a larger scope than only those with "significant authority."

      Based on the results of her research, Mascott ultimately concludes that the Supreme Court's understanding of "officers of the United States" is too narrow. The correct interpretation should be anyone with "responsibility for an ongoing statutory duty." (23)


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