This comment will discuss Prof. Anya Bernstein’s post, entitled “More than Words,” which is part of Duke Law’s blog series “Corpus Linguistics and the Second Amendment.” (My prior posts can be tracked down here.)
Prof. Bernstein does not focus extensively on Heller; she offers a wider perspective. The gist of her post is summed up in this paragraph:
If we want to treat constitutional language the way a linguist would, … we will assume that linguistic meaning changes over time as everything around it changes—from its readers and expositors and implementers, to the social norms and social structure in which it takes effect, to the legal regime that it functions in. Corpus linguistics, then, works on a rather non-originalist assumption. Linguistics does not recognize a fixation thesis, but rather assumes that language—as a social medium—continually develops along with the society around it.
This raises at least two important questions:
(1) Should one assume “that linguistic meaning changes over time”? (For brevity’s sake, I’ll call that assumption the “change thesis.”)
(2) Does CL work on a non-originalist assumption that entails the non-recognition of a “fixation thesis”? (The latter term is of course most closely associated with Prof. Lawrence Solum, who has written: “The meaning of the constitutional text is fixed when each provision is framed and ratified: this claim can be called the Fixation Thesis.”)
I am going to consider those two questions in reverse order.
Although Prof. Bernstein believes that CL does not recognize a fixation thesis, some CL practitioners surely would disagree. For example, Mr. Neil Goldfarb’s post (which I’ve discussed here) amply demonstrates his belief that CL can fix the meaning of the phrase “the right of the people to keep and bear Arms” in 1791; he holds that belief just as strongly as Justice Scalia believed that his own originalist analysis could accomplish that same task. Each endorsed a different fixed meaning—Mr. Goldfarb thinks the phrase is best understood as referring exclusively to military uses of arms; Justice Scalia believed it encompassed both military and non-military uses—but both believed the phrase had a fixed meaning in 1791 that is recoverable in this century. So at least some practitioners of CL do recognize a fixation thesis.
Regarding question (1), I’d guess that virtually no one would answer in the negative. Indeed, Justice Scalia (in a book entitled Reading Law, co-authored with Bryan Garner) wrote: “Words change meanings over time, and often in unpredictable ways.” (P. 78, fn. omitted.) But Prof. Bernstein’s assertions as to how a fixation thesis relates to both the change thesis and linguistics get things backwards. If, as she says, linguists assume the change thesis, that assumption itself implies that, at various times, linguistic meaning is fixed, just as the fixation thesis posits. The very concept of “change” requires that there are times when things are fixed, that is, unchanging.
An object changes physical position only if, at a certain time, it is at point A and, at a later time, it is at point B. A change in position necessarily implies that a starting point, point A, is fixed. If we don’t know whether something at point B was initially at some place other than point B, we can’t know whether the thing has changed its position or, instead, has always been at point B.
Similarly, if the change thesis is correct in positing that “linguistic meaning changes over time,” then it follows that some bit of language had at a certain time a certain fixed meaning and then, at a later time, the same bit had a different meaning. (Just to be clear: to say that a bit of language had or has a fixed meaning is not to say that, at any time, it was free of ambiguity or vagueness. Ambiguity or vagueness will always be an integral feature of some linguistic expressions. “Due process of law,” “the equal protection of the laws,” “unreasonable searches and seizures”—these phrases and many others have always been, and always will be, vague to a very substantial degree. “Sister-in-law” is always ambiguous.)
One implication of the foregoing is that not all linguistic meanings can be changing all the time. There has to be some stability of meaning, or else we will again lack the fixed starting points that are necessary if change is to occur. To empirically verify any kind of change, whether of billiard balls or linguistic expressions, the change must occur at a measurable pace. An observer must be able to confirm that, at a particular time, the phrase meant X, and at a later time it had a somewhat different meaning. So, with all due respect, if linguists assume the change thesis, then those same linguists do indeed recognize, explicitly or implicitly, a fixation thesis. Assertions to the contrary are incorrect.
A second important implication of the change thesis is that previous meanings—meanings that bits of language had at one time but that changed subsequently—must be recoverable. That is, even if a language bit has a meaning today that it did not have at an earlier time, we must be able to determine today, at least to some degree, the meaning it did have at that earlier time. If previous meanings aren’t recoverable at all, we would have no empirical ground for asserting that any meaning has ever changed, and thus no ground for accepting the change thesis.
Thus, the change thesis and the fixation thesis are both consistent with the notion that, at a particular point in time—say, e.g., 1789, when the Constitution was ratified, or 1791, when the Second Amendment was ratified—the language in the Constitution or the Second Amendment had a fixed meaning, and at a later time the meaning changed to some degree. Moreover, notwithstanding any subsequent changes in meaning, it might well be possible today to recover meanings for the Constitution and the amendment that would have been the meanings understood at the end of the eighteenth century. All of that is perfectly consistent with both the change thesis and the fixation thesis.
In sum, an originalist (or, as I would prefer, a careful and thoughtful constitutional textualist) and a linguist both employ a methodology that, at a fundamental/logical (but not operational) level, is consistent with the other’s methodology. Moreover, the linguist’s fundamental methodology—specifically, the change thesis—itself implies that the originalist’s fixation thesis also must be accepted, because there can be no change without a fixed starting point. The converse, I think, is not true; we can conceive of a language that generates linguistic expressions with meanings that never change over time. But, of course, no one believes that is how living languages work in the real world.
Posted at 6:19 AM