Can a corpus analysis of the “ such … as ” construction in 18th-century American English lead courts to a changed interpretation of the U.S. Constitution’s

Abstract

This article applies corpus linguistic methods to legal interpretation to clarify the meaning of the Appointments Clause of the United States (U.S.) Constitution. Our corpus-based linguistic analysis raises doubt about whether the U.S. Supreme Court’s interpretation of this provision is consistent with the way the Constitutional text uses the well-studied construction “ such  + noun phrase +  as .” We use data from the Corpus of Founding Era American English as well as from a large corpus taken from an online resource created by the U.S. National Archives: public and private correspondence, public actions and speeches, government documents, and political writings from 1751 to 1836 relating to James Madison, an important figure in Founding Era America, to investigate how the “ such  + adjective + noun +  as ” construction was used in Founding Era American English. Our analysis suggests that the text of the Appointments Clause does not support the approach taken by the Supreme Court over the past 50 years and further suggests that, by using a “ such… as ” construction as a discretionary qualifier, the constitutional text points toward giving Congress rather than the courts the final say as to whether Congressional approval is required when appointing federal officials.