Moore, Corpus Linguistics, And The Original Public Meaning Of The Sixteenth Amendment

Thomas R. Lee (BYU), Lawrence B. Solum (Virginia; Google Scholar), James Cleith Phillips (Chapman) & Jesse Egbert (Northern Arizona; Google Scholar), Corpus Linguistics and the Original Public Meaning of the Sixteenth Amendment:

Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes, from whatever source derived” under the original meaning of Sixteenth Amendment. This is widely viewed as the most important tax case to reach the United States Supreme Court in decades. It is also an opportunity for the Court to refine its theory and method of finding original meaning.

We focus here on the original public meaning of the Sixteenth Amendment—the ordinary, common meaning attributed to its text by the general public in 1913. So far, the parties and amici have relied on contemporaneous dictionaries to argue over such meaning. But the cited dictionaries don’t establish the ordinary meaning of “incomes, from whatever source derived”; they highlight a key ambiguity in the very terms of the definitions presented.

This article fills important gaps in the original public meaning analysis in Moore. It introduces principles of linguistic theory that align with—and help refine—strands of the Court’s originalist inquiry. And as to method, it introduces evidence from corpus linguistic analysis to provide a transparent, replicable basis for assessing the ordinary public meaning of the Sixteenth Amendment’s relevant terms.

The analysis is performed in two steps. Step one the article calls “words-to-meaning.” Linguistic theory would refer to this as “semasiology.” This form of analysis seeks to determine the meaning of a particular word or phrase. The Court often invokes this type of interpretive methodology.

Our word-to-meaning analysis looked at every instance of “income” or “incomes” from 1900-1912, finding a total of 978 instances in the Corpus of Historical American English (COHA)—and—that spoke of “income(s)” “derived” from a source. After eliminating results that were indeterminate, we found that in 100% of the remaining results, “income(s)” was used to refer to realized gains, not unrealized ones.

Of course, it’s possible that the phenomenon of unrealized gains was rare in the corpus, which would explain “income(s)” never referring to it. So the second step of our analysis, what we call “meaning-to-words,” checks for this. (Linguistic theory refers to this as “onomasiology.”) At this step, we look for the concept to see what term is used to describe it. The Court likewise uses this technique when, for example, it says that normally one would refer to some concept with a certain word.

We searched in the same timeframe for instances of unrealized gains, with terms like “increase in value.” We found dozens of instances of references to unrealized gains, but not once were such referred to as “income(s).” In short, our corpus linguistic analysis reveals that the original public meaning of “incomes, from whatever source derived” almost certainly only covers realized gains. And our methodology provides greater transparency, objectivity, and replicability than more traditional tools relied on by others.