Academic journal article Brigham Young University Law Review

The Original Meaning of "Religion" in the First Amendment: A Test Case of Originalism's Utilization of Corpus Linguistics

Academic journal article Brigham Young University Law Review

The Original Meaning of "Religion" in the First Amendment: A Test Case of Originalism's Utilization of Corpus Linguistics

Article excerpt

I. INTRODUCTION

This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics to originalism. This affords a first-cut illustration of the extent to which corpus linguistics can make originalism's methodology more rigorous. second, this Essay utilizes the tools of corpus linguistics to provide additional evidence of the original meaning of "religion" in the First Amendment.1 Third, based on this experience, it describes some of the challenges originalist scholars will likely face employing corpus linguistics.

II. CORPUS LINGUISTICS AND ORIGINALISM

Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts.2 Today, scholars typically utilize computers to identify and analyze word usage in electronic and electronically-searchable databases called corpora.3 Corpus linguists apply a variety of tools and analyses to corpora. For instance, "collocation" is a tool that permits identification of the words most commonly associated with (and within so many words of) a searchedfor word.4 Corpus linguistics is just beginning to have an impact on legal scholarship.5 I describe my use of corpus linguistics for purposes of this Essay below, in Part IV.

Originalism is the theory of constitutional interpretation that identifies the Constitution's text's public meaning when it was ratified as its authoritative meaning.6 The process of uncovering the original public meaning contains a number of distinct components.7 One analytically distinct and important step is to identify the conventional meaning of the Constitution's words and phrases at the time of ratification.8 In previous scholarship, I argued that originalists should utilize corpus linguistics to facilitate originalism's capacity to accurately uncover this original conventional meaning.9 I labeled originalist use of corpus linguistics, "computer-assisted research technology," or "CART."10

However, my arguments there were theoretical; this Essay provides a modest, practical test of corpus linguistics' capacity to increase originalism's methodological accuracy. Below, in Part IV, I provide a test case that shows how corpus linguistics augments my previous originalist scholarship describing the original meaning of "religion" in the First Amendment.11 This provides (preliminary) evidence of the practical capacity of corpus linguistics to enhance originalism, even for those texts over which there is substantial current interpretative disagreement.

At the same time, as I explain in Part V, this test case exemplifies some of the challenges originalist scholars will likely face employing corpus linguistics. Originalist scholars face both technical and professional obstacles. Technically, there does not yet exist the type of publicly available and robust corpora of sources from the framing and ratification period that will maximize originalism's benefits from corpus linguistics. Professionally, most originalist scholars' backgrounds do not include training in the theory, techniques, and terminology of corpus linguistics, and this creates challenges to originalists fully capitalizing on corpus linguistics' promise.

III. "RELIGION" IN THE FIRST AMENDMENT

A.Introduction

In this Part, I briefly review the history of the interpretation of "religion" in the First Amendment. Section B summarizes the history of the Supreme Court's treatment of the term and the recent scholarly debate over its meaning. Section C describes my prior originalist scholarship, which reviewed the historical evidence and concluded that the original meaning of religion was a belief system that contained these three components: (1) belief in a deity; (2) with duties in this life; and (3) a future state of rewards and punishments.

B.Jurisprudence and Scholarship on the Meaning of "religion" in the First Amendment

Since the mid-twentieth century, there has been significant debate over the meaning of religion in the First Amendment both on the Supreme Court and among scholars. …

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