Corpus Linguistics and the Original Public Meaning of the Sixteenth Amendment

Abstract

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 the Sixteenth Amendment. Moore 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. More broadly, it also charts a path for refining the theory and methodology of the originalist inquiry more generally. At the theory level, it introduces principles of language philosophy 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.

We use the Corpus of Historical American English (COHA) to analyze the ordinary public meaning of the constitutional language at the time of ratification of the Sixteenth Amendment. At the “words-to-meaning” level, we show that “income(s)” was always used in 1900-1912 to refer to realized gains. We also perform a “meaning-to-words” analysis, showing that unrealized gains were always referred to using terms other than “income(s).”

Our corpus linguistic analysis reveals that the original public meaning of “incomes, from whatever source derived” almost certainly only covers realized gains. And it charts a path for greater transparency, objectivity, and replicability than more traditional tools of originalism.

Online appendix available at https://ssrn.com/abstract=4560186

Keywords: sixteenth amendment, originalism, corpus linguistics, constitutional interpretation