Effective but Limited: a Corpus Linguistic Analysis of the Original Public Meaning of Executive Power

JurisdictionUnited States,Federal
Publication year2020
CitationVol. 36 No. 5

Effective but Limited: A Corpus Linguistic Analysis of the Original Public Meaning of Executive Power

Eleanor Miller

Department of Treasury Washington, elliefmiller@gmail.com

Heather Obelgoner

Supreme Court of Georgia, Honorable Robert Benham, hobelgoner@gmail.com

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Eleanor Miller & Heather Obelgoner*

"Nothing Since my return to America, has alarmed me so much, as those habits of Fraud, in the use of Language which appear in conversation and in public writings. Words are employed like paper money, to cheat the widow and the fatherless and every honest Man."—John Adams1

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"Article II allows me to do whatever I want," President Donald Trump claimed, without even a whiff of irony.2 And though even the most fledgling of armchair constitutional scholars will recognize that this statement does not comport with the reality of our Constitution or system of governance, exactly what is meant by Article II's vestment of the "executive power" in the President is a different matter. Though this question may have received more attention as of late, it certainly is not novel. Within a year of the Constitution's ratification, John Adams opined that "Executive Power is uncertain."3 And indeed, of the three branches of the American government, the limits and scope of the executive branch have proven to be the most elusive to scholars and jurists alike. President Barack Obama's enlistment of the executive order to implement policies that Congress declined to pass led Congressional Republicans to label him "a dictator who abused his power and disregarded the Constitution."4 More recently, President Trump has claimed that he, as President, has a "complete power to pardon," setting off yet another firestorm of questions surrounding the extent of executive power.5

And the question remains: what really is executive power? One answer lies in the original meaning of the phrase itself. Importantly, original meaning is not the same as original intent. Put more eloquently

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by the late Justice Antonin Scalia, "[i]t is the law that governs, not the intent of the lawgiver. . . . Men may intend what they will; but it is only the laws that they enact which bind us."6 Whereas the original intent inquiry focuses on the Framers' expectations and desires, original meaning concerns itself with the "common meaning of the enacted text."7 This relatively new form of originalist thinking, dubbed "public meaning originalism," acknowledges the inherent difficulty (and arguable futility) in attempting to ascertain the Framers' intentions and instead focuses on analyzing the "communicative content" or linguistic meaning of constitutional text.8 In the past, scholars have been forced to rely heavily on Founding Era dictionaries and legal texts when analyzing the public meaning of a constitutional phrase.9 Despite its appeal, this method has been the subject of significant criticism because neither dictionaries nor legal texts accurately reflect generalized public meaning.10 However, modern linguistic tools, such as large-scale electronic databases comprised of searchable texts known as corpora, provide a unique opportunity for updated originalist interpretations.11

This paper will engage linguistic and historical analysis in an effort to discern the original public meaning of the phrase executive power as used in Article II of the United States Constitution. In light of

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significant modern controversy surrounding the proper limits of executive authority, an original meaning interpretation of this critical phrase will illuminate the executive's function as it was commonly understood at the time of constitutional ratification. Part I will engage in a linguistic analysis of the phrase executive power, drawing primarily on corpus linguistic methodology surrounding the phrase's Founding Era usage. Part II will analyze the history of Article II, with particular attention to the public discourse concerning the scope and reach of the British king's powers. Part III will fuse these areas of analysis and propose a synthesized original meaning of the phrase executive power. And, finally, Part IV will consider the Supreme Court cases of Myers v. United States and Steel Seizure,12 seminal cases of executive power jurisprudence, as well as the public discourse surrounding those cases at the time of their being decided.

I. Linguistic Analysis

Corpus linguistics provides an empirical framework for original meaning analysis. Namely, the extensive word-based data collections allow researchers to track trends in word usage during the Founding Era and beyond. By reviewing lines of text from both sophisticated legal documents and more general writings from the era, researchers can potentially gain insight into the original meaning of a word by tracking the frequency and contextual usages most commonly associated with historical words and phrases across all genres of text. This feature is particularly important in light of "linguistic drift," the idea that the meaning of a word shifts subtly over time, fundamentally altering the way that the word or phrase is perceived by one generation as compared to another.13 Importantly, linguistic drift may be responsible for disparities between the original meaning of a constitutional phrase and the way that the phrase has been interpreted by courts and scholars in modern times.

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The following corpus linguistic research is premised on the hypothesis that the word executive has experienced linguistic drift since the 1700s, coloring the modern understanding of executive power as it pertains to the President and creating an ambiguity in the term. Tables 1 and 2 below are illustrative of the shift:

The above tables map collocates of the word executive—words that frequently co-occur with the word executive.14 Table 1 provides a list of words that immediately precede the word executive in Founding Era

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texts,15 whereas Table 2 tracks the same for modern usage.16 The only word that appears in both lists—chief—is highlighted in grey. Although a very simple comparison, potential linguistic drift is immediately apparent from the data. In Table 1, executive's collocates largely bear governmental connotations, for example: supreme, independent, national, and federal. However, the COCA data appear to be dominated by a private sphere connotation, with collocates such as senior, marketing, advertising, and corporate. Moreover, a search of chief executive officer in the COFEA yields only seven results, all of which refer to the leader of a governmental body.17 On the other hand, the same phrase in the COCA returns 2,050 results, with the vast majority of hits referencing leaders of private businesses.18 In fact, in a random sample of 100 COCA hits, 96% referenced leaders of business entities.19

This linguistic dichotomy suggests that the modern understanding of executive power as it pertains to presidential power is perhaps colored by a usage of the term executive that is exclusive to the modern age—an understanding that is exemplified by the popular campaign catchphrase suggesting that the President should "run the government like a business."20 In fact, a corpus-based analysis using Google's book scanning tool21 shows that the first recorded use of the phrase "government like a business" appears in the 1920s, with the phrase

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gaining popularity under President Ronald Reagan in the 1980s.22 Despite modern political rhetoric's conflating these two distinct understandings, or senses, of executive, the original public meaning of executive power was likely something quite different. And although the thrust of this paper is not an outright comparison of the modern framing of executive power with its Founding Era understanding, this shift in meaning is nevertheless relevant to demonstrating why an empirical original meaning analysis of executive power is necessary to fully understand the scope of Article II. To that end, the following presents data on the frequency and usage of the phrase executive power during the Founding Era as supporting evidence of the phrase's original public meaning.

A. Linguistic Methodology

As a preliminary matter, and as is evidenced by the previous discussion, executive power is a polysemous phrase; thus, any meaningful analysis of its usage must recognize and distinguish its various meanings.23 Corpus linguists differentiate the senses associated with polysemous words and phrases through a process called coding.24 During the coding process, a word or phrase is searched in an electronic database known as a corpus.25 The corpus search produces key word in context (KWIC) concordance lines showing snapshots of text containing the searched phrase, thereby allowing the linguistic researcher to glean the sense of the phrase from the words around it.26 This method is based on the idea that the meaning of a word or phrase is dependent on the context in which it is used—similar to the noscitur a sociis rule of statutory construction in law.27 Based on review of the KWIC concordance lines, different

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senses are assigned numbers and search results are categorized according to which sense they implicate.

Here, the senses of the phrase executive power were coded pursuant to grounded theory methodology—instead of predetermining set categories of senses and conforming the data to those categories, the senses used in this analysis were coded based on the prevailing meanings that emerged during the data review itself.28 Because of the amorphous nature of the phrase, and in order to record the most nuanced results possible while at the same time avoiding confirmation bias, grounded theory's more flexible methods were preferable to rigidly preset categories based on either dictionary definitions or researcher expectations.29 In particular, permitting...

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