Note: this is the third in a series of blog posts responding to Larry Solum’s defense of public meaning originalism.
As we mentioned in our previous posts, Professor Larry Solum recently wrote up this statement in support of “public meaning originalism” and Judge Neil Gorsuch. (As of today, Solum’s statement has been downloaded over 3100 times.) In his defense of originalism, Professor Solum identifies four popular myths surrounding the theory of originalism. Among these myths and misconceptions is the claim that originalist judges are unable to apply the Constitution to new circumstances (Myth #2). In particular, Solum states (p. 3):
“There was no Internet when the First Amendment was written in 1791. Today, Americans can speak over the Internet. The application of the freedom of speech to a speech broadcast over the Internet is very simple. Speech is speech, whether it is in person, amplified by speakers, or transmitted over the Internet. The Constitution was written in language that can be applied to new circumstances. There was no State of Iowa when the Constitution was ratified, but there was no difficulty in applying the constitutional provision that grants each State two Senators to the new state Iowa.”
Let’s consider the Iowa example first. To begin with, notice what an easy example this is; that is, notice how Professor Solum uses a totally elementary and facile case (i.e., is a new State entitled to two Senators?) to try to trick us into believing in the merits of originalism. (For the record, Iowa was admitted into the union in 1846.) But this case is child’s play. In fact, it is so easy to resolve that such a case has never gone up before the U.S. Supreme Court in its entire 228-year history! Everyone–originalists and non-originalists–already agree on its outcome, so we don’t need a theory of interpretation to tell us that every new State is entitled to elect two Senators.
Now, let’s go back to the Internet speech example. When Professor Solum states that “the application of the freedom of speech to a broadcast over the Internet is very simple,” he is either being intellectually dishonest or just plain naive. Consider, for example, a state law that prohibits registered sex offenders from “accessing” certain social media sites, including Facebook, Snapchat, and Instagram. So, does this law violate the First Amendment? (By the way, a case with exactly these facts, Packingham v. North Carolina, went all the way up to the U.S. Supreme Court last month. A decision is expected by June.) More to the point, how would a public meaning originalist like Professor Solum or Judge Gorsuch decide this case? Your guess is as good mine!
The bottom line is this: any theory of constitutional interpretation–whether it be “original intent” originalism (Originalism 1.0), or “public meaning” originalism (Originalism 2.0), or pragmatism (the Living Constitution), or whatever–can figure out the easy cases without breaking a sweat. But no theory of interpretation will be able to provide definitive or principled solutions in hard cases. Beyond the easy Iowa cases, constitutional law is a contested space, like the Internet itself, and we would all be much better off if we stopped pretending otherwise …