Ode to the Assistant Doorkeeper of the House of Representatives, by James Heilpern

by Guest Blogger — Monday, Apr. 2, 2018

In February, I submitted an amicus brief to the Supreme Court in the case Lucia v. SEC, arguing that the original public meaning of the term “Officer(s) of the United States” referred to any government employee exercising non-negligible federal power. While I submitted the brief on behalf of a fifteen corpus linguistics scholars, in a strange way, I felt like I was representing Thomas Dunn—an 18th century assistant doorkeeper of the House of Representatives. Dunn was appointed by Congress in 1798 and charged with, among other things, keeping the House’s fireplace stocked with firewood and doing standard janitorial work. For these services, Congress paid him “four hundred and fifty dollars per annum”[1] and called him an “officer.”[2]

In a recent article, Jennifer Mascott has argued persuasively that the phrase “Officer of the United States” was not a legal term of art, but rather just “a descriptive phrase indicating the officers are federal, and not state or private, actors.” If correct, the meaning of “officer” in the Constitution should thus correspond with the original meaning of the term “officer” in general. But being 250 years removed from the founding makes this meaning difficult to intuit. As Justice Thomas Lee of the Utah Supreme Court has explained, “This is the problem of linguistic drift―the notion that language usage and meaning shifts over time.” Sometimes these changes can be quite dramatic, and occur for no apparent reason. Consider the following (possibly apocryphal) account of the rebuilding of St. Paul’s Cathedral in 1675, taken from a linguistics column published during the early twentieth century:

When architects’ drawings for the rebuilding of St. Paul’s Cathedral after the fire were submitted, Sir Christopher Wren was told that his design had been chosen because it was “at the same time the most awful and the most artificial.” A modern architect would hardly think such a verdict complimentary. Far from being disparagement, it was the highest praise. “Awful” correctly meant inspiring awe, and “artificial” designed with art.[3]

The emerging field of corpus linguistics can alert us to such shifts in language. Corpus linguistics investigates real-language use and function by analyzing huge electronic databases of naturally-occurring texts. These databases have an esoteric name—corpora (the plural of corpus)—but are simply digitally-searchable collections of real-world sources such as books, newspapers, speeches, etc. Although corpus linguists use many different tools, when interpreting a historical text scholars often follow the following procedure:

  • Identify a corpus that corresponds with the speech community and time period she wishes to investigate;
  • Search for the relevant search term using a “Keyword in Context” (KWIC) feature, which finds and displays in context every instance of the queried term in the database;
  • Generate a random (and thus likely representative) sample of the returned KWIC lines large enough to generate statistically significant effects; and
  • Code each KWIC line in the sample for its relevant word sense, relying on the system’s expanded context feature when necessary.

This approach can produce useful quantitative and qualitative data about the real-world usage of the relevant term.

For our amicus brief, we created a specialized corpus of all Statutes-at-Large passed by the first five Congresses of the United States between 1789 and 1799. Congressional understanding of the word is particularly relevant because the Constitution delegates to Congress―and only Congress―the authority to deviate from the standard appointment process: while most officers were to be appointed by the President with the advice and consent of the Senate, “the Congress may by Law vest the Appointment of . . . inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

While all of our raw data is now publically accessible, a few broad observations are worth highlighting here. In addition to high-ranking officials such as the President, Vice President, and Secretary of State, other specific positions referred to as “officers” in the statutes included less glamorous roles such as the Purveyor of Public Supplies, the accountant of the War Office, and the melter and refiner of the U.S. Mint. Each port in the United States had three “customs officers” appointed by the President and confirmed by the Senate―a “Collector,” “Naval Officer,” and “Surveyor,” whose duties included receiving ship manifests and inspecting imports.

Additionally, the corpus reveals that Congress created a small army of low-ranking government agents throughout the country―some appointed di-rectly by the President and others by heads of departments—including “officers of inspection,” “accounting officers,” patent officers, “revenue of-ficers,” “custom-house officers,” “loan officers,” “health officers,” “recording officers,” and “auxiliary officers.” The Treasury Department even appointed individual “officers” to survey each “distillery” and “still” of “spirits” in the Union. Congress sometimes, but not always, referred to clerks and attendants as officers, going as far as to require “each and every clerk and other officer . . . in any of the departments of the United States . . .[to] take an oath or affirmation before one of the justices of the supreme court, or one of the judges of a district court of the United States, to support the constitu-tion.” “Officers of the court,” included clerks and marshals.

Then, of course, there was our friend Thomas Dunn—the stalwart assistant doorkeeper of the House of Representatives. If Congress felt his duties, menial as they were, qualified him as an officer, why should we demote him now? And if he qualifies as an officer, surely an Administrative Law Judge for the SEC does, too.

[1] Act of April 12, 1792, ch. 20, 2 Stat. 252 . See also Act of July 16, 1798, ch. 81, 5 Stat. 608 (appointing Dunn).

[2] Act of March 2, 1799, ch. 33, 5 Stat. 728 (emphasis added).

[3] Arthur Ponsonby, The King’s English, The Baltimore Sun, M15 (March 18, 1928)

James Heilpern is the Law and Corpus Linguistics Fellow at the J. Reuben Clark Law School at Brigham Young University.

This post is part of a symposium on Lucia v. SEC. All of the posts can be read here.

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