Recently filed, in State of Utah v. Planned Parenthood (Utah Supreme Court), this amicus brief from Pro Life Utah uses corpus linguistics analysis to support an originalist constitutional argument. From the introduction to the argument:
Originalism has deep roots in this Court’s precedent. See Richardson v. Treasure Hill Mining Co., 65 P. 74, 81 (Utah 1901). And in recent decades, the Court has “repeatedly reinforced the notion that the Utah Constitution is to be interpreted in accordance with the original public meaning of its terms at the time of its ratification.” State v. Lujan, 2020 UT 5, ¶ 26, 459 P.3d 992.
The originalist inquiry follows from presuppositions about who makes the laws in our system of government. “The terms” of a written constitution “merit our respect unless and until they are amended or repealed.” Mitchell v. Roberts, 2020 UT 34, ¶ 51, 469 P.3d 901. And the courts “must enforce the original understanding of those terms whether or not [they] endorse its dictates as a policy matter.” Id.
…
The originalist inquiry avoids the risk of the Court confusing its policy preferences with those that undergirded the ratification of a given provision of the Utah Constitution in the first place. See Mitchell, 2020 UT 34, ¶ 51 n.27 (noting “that ‘a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels”) (quoting A.M. v. Holmes, 830 F.3d 1123, 1170 (10th Cir. 2016) (Gorsuch, J., dissenting)). And it leaves judgment on the wisdom of constitutional changes to the people, who retain the right of amendment. Utah Const. art. 23, § 1.
On the use of corpus linguistics:
Corpus linguistic tools help the courts deliver on these aims. In a given case, a court may be inundated with competing sources of evidence of “the shared linguistic, political, and legal presuppositions and understandings of the ratification era.” Richards, 2019 UT 57, ¶ 13. Corpus tools help the court sort and organize such evidence. They can help identify patterns in the historical record and quantify support for each party’s position. They do this by assembling evidence of how the relevant language was “actually used in written or spoken English” using “large bodies of real-world language.” Id. ¶ 19 (quoting State v. Rasabout, 2015 UT 72, ¶57, 356 P.3d 1258 (Lee, J., concurring)). And they thus allow judges to avoid the risk of confirmation bias or motivated reasoning in the analysis of historical evidence. See id. ¶ 20 (noting that corpus tools can help judges “check” their “intuition”).
More specifically as to the issue in the case:
Corpus tools may not always present a clear picture of the original understanding of the text of the Utah Constitution. In some cases, relevant evidence of “the shared linguistic, political, and legal presuppositions and understandings of the ratification era,” Maese, 2019 UT 58, ¶ 19 n.6 (quoting Neese, 2017 UT 89, ¶ 98), may cut in different directions.
But this is not a close case. The record is clear and one-sided on the originalist question presented: At the time of ratification of the Utah Constitution, no “competent and reasonable speaker” of English, id., could have viewed access to abortion as a matter so “deeply rooted in this Nation’s history and tradition and in the history and culture of Western civilization,” In re Adoption of J.S., 2014 UT 51, ¶ 52 (quoting In re J.P., 648 P.2d at 1374–75), that it “form[ed] an implicit part of the life of a free citizen in a free society,” Tindley, 2005 UT 30, ¶29, 116 P.3d 295. Evidence of “‘the shared linguistic, political, and legal presuppositions” of the era consistently cuts the other way.
The brief was filed by recently retired Utah Supreme Court Justice Thomas R. Lee (a leading advocate of corpus linguistics analysis) and his firm Lee Nielsen.
(Thanks to James Phillips [also on the brief], who adds: "[The brief is] pioneering in two ways. It is the first, I'm pretty sure, corpus linguistic analysis of state materials for a state constitutional question. Second, it's the first corpus linguistic analysis for a history/tradition substantive due process inquiry.")
Posted at 6:42 AM