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 …
