The problem with so-called public meaning originalism

President Trump’s nomination of Judge Gorsuch to the Supreme Court has reignited the longstanding constitutional battle between defenders of the Living Constitution and backers of Originalism. (If this never-ending normative debate were a baseball game, it would be in the 57th inning by now.) The latest scholar to enter this theoretical fray is Jonathan Gienapp, a historian at Stanford. Professor Gienapp recently wrote up this helpful essay explaining the origins and finer points of “public meaning originalism,” an influential theory of constitutional interpretation espoused by many conservative jurists. In brief, this theory of constitutional interpretation purports to discover the “public meaning” of the words of the original Constitution, that is, how the words of the original Constitution would have been understood by a competent speaker of the language when the Constitution was first drafted. In his essay, Professor Gienapp goes on to criticize this theory in his capacity as a professional historian, arguing that public meaning originalism is not about history but rather about linguistics. In the words of Professor Gienapp:

“…originalists have stopped trying to beat historians at their own game—by rewriting the very rules by which that game is played. They seem to have realized that they will never know as much as historians about the Constitution’s origins or historical development, so instead of fighting a losing empirical battle why not stake out different conceptual foundations altogether? That way, most disputes can turn on philosophy of language, interpretive method, and legal doctrine (as they now do) without dwelling on the details of the historical past. And if historians wish to object, they dare not mention the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century; they must, instead, offer a series of methodological and philosophical arguments targeting originalists’ conceptual formulations.”

Prof. Gienapp’s critique of originalism, however, is way too narrow and parochial. After all, history can be just as contested as language, so the work of history does not get us any closer to truth than the study of linguistics does. As such, the problem with public meaning originalism is not that it neglects the methods of historians. Rather, the main problem with originalism as a theory is that there often is no single or obvious public meaning of open-textured words and phrases like “equal protection” or “due process of law.” In reality, the public meaning of such words can still be open to interpretation because there were so many possible readers of the Constitution at the time the words of the founding charter were drafted and ratified. Those same words could have many public meanings, depending on the identity of who was reading them …

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4 Responses to The problem with so-called public meaning originalism

  1. Craig says:

    I liked (and have) the book “Original Meanings” by Rakove. Read it a long time ago. Between that book, and the Federalist Papers, I see merit in the argument that the legitimacy of the Constitution derived from the understanding of it by those who ratified it, i.e., the Legislatures. They in turn were “informed” (or propagandized, take your pick) of its meaning by “Publius” et al, who were advocates of its adoption. If those to whom the question were originally put had a *different* understanding of the words, then perhaps they would not have adopted it. I think this favors the idea of “public meaning” or at least, the meaning construed by an informed and propagandized public.

    But isn’t the real point whether the public reads those words and understands them the same way today? And isn’t the very notion of “public” different than it was 200-plus years ago?

    The absurdity of demanding that Americans in 2017 don three-pointed hats so that they may think like an Originalist is… well.. obvious. We can’t do it. We can’t think that way anymore, as hard as Scalia tried to time-travel back to those days. (Maybe that’s where he is now!) It doesn’t mean that we abandon public meaning, but it means that the public understands the words of the Constitution in different ways over time, as they must.

    The Commissioner of Baseball has the power (and I think he devolves some of this power to umpires) to declare certain acts during a game as “a travesty to the game”, i.e. so detrimental to the spirit of the game that, even if there is no rule forbidding it, the travesty alone forbids it. I think our notion of travesty in American public life evolves, and we don’t want to abide travesties — one may argue that this is what Constitutional amendments are for, but perhaps this instead is what judicial re-readings and re-interpretations of the same powerful words are for. Cue trumpets and tubas!

    • Gienapp cites Rakove’s book in his essay. The analogy to baseball is apt.

      • Craig says:

        I forgot to include piccolos. I can’t wax like Eddie Albert on Green Acres without piccolos.

      • That would make a great crossword puzzle clue. Back to your original comment, I think you are absolutely right. Even if there were one unique “public meaning” in 1787, why should we privilege a reader from 1787 (who’s now dead, by the way) over a present-day reader. There should be a rule against perpetuuties in constitutional interpretation!

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