Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism ultimately fall flat if critics fail to propose preferable alternative to originalism. After all, it takes a theory to beat a theory.
This Article proposes an alternate theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This straightforward alternative has attracted surprisingly little discussion in the originalist literature until Frederick Schauer’s recent article, Unoriginal Textualism, argued for the theory’s feasibility. While Schauer devotes much of his article to the claim that the present public meaning approach is theoretically possible, his discussion of why such an approach is preferable to originalism is limited.
This Article picks up where Schauer leaves off and argues that the present public meaning approach is preferable to originalism. The present public meaning approach to constitutional interpretation is a better means of constraining judges, and leads to judicial decisionmaking that is more transparent and predictable. It also better achieves goals of democratic legitimacy by taking into account modern views on indeterminate, value-laden language in the Constitution and its amendments and by accounting for significant expansions in the right to vote since the founding. Additionally, the present public meaning approach avoids significant implementation obstacles originalism faces, and is more likely to lead to desirable results by better accounting for present circumstances.
This Article does not contend that the present public meaning approach is the best approach to constitutional interpretation. But it is still preferable to originalism—avoiding numerous shortcomings and critiques against originalist methodology, and preferable in light of many normative considerations that originalists claim to honor. Originalists must therefore take the present public meaning approach seriously when defending their theories of constitutional interpretation.
This article has been in the works, in one form or another, for a few years. I previously blogged about Schauer's article here, and got into some of the initial thoughts that I've since incorporated into the larger article.
At The Originalism Blog, Michael Ramsey has a brief reaction to the article:
Often, especially as to technical provisions, I think present public meaning doesn't differ that much from original public meaning, which is why (in my view) original meaning originalism is, or should be, heavily textualist. But sometimes it does, and I'm not sure of the justification for letting our basic law be determined by random changes in language. More importantly, though, I think in many cases the present public meaning isn't distinct from what one thinks the Constitution ought to mean. Consider "due process of law": does its modern meaning include "substantive" due process? That question isn't really separable from whether one thinks it should include "substantive" due process. Thus it is not really an objective test.
On the first point, I agree that there are likely many instances where the original and present meanings of constitutional provisions are the same. Age requirements for offices and the numbers of senators per state don't require us to delve into the archives to determine original meanings. But these generally are not the provisions that trigger litigation and which are front and center in modern disputes over constitutional law.
As for Ramsey's concern about this not being an "objective test," it's unclear how this objection does not apply to originalism as well. The article's suggestion is fairly minimal: rather than looking to the original public meaning of a constitutional term or provision, judges, lawyers, and the public should look to the present public meaning of the term or provision. Apply this to a phrase like "due process of law." The definition of this term is not immediately apparent. One might argue that this indeterminacy is not a product of present or original meaning, but the phrase itself--it's a loaded term.
Originalists will likely respond that the original public meaning of "due process of law" is narrow and technical, and that once one gets into the weeds of historic meaning, what seems to be a loaded or indeterminate phrase can actually be parsed out with a fair degree of certainty. Lawrence Solum and Max Crema have recently posted a forthcoming article arguing precisely that. From the abstract:
The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.Say that Solum and Crema's argument is correct. This doesn't change their observation at the outset: "The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text." If the modern meaning of "due process of law" does include substantive due process, then that's the meaning. Seems fairly "objective" to me.
And it's unclear how originalism is more "objective" than the present public meaning approach. Indeed, if one can establish that substantive due process is not a part of the original public meaning of "due process of law," then the choice to proceed with an originalist interpretation may well be motivated by the goal of reading that phrase to exclude substantive due process. This does not appear to be a particularly objective approach either.
"Objectivity" aside, the present public meaning approach is appealing in other ways. As Solum and Crema's article demonstrates, if they are right about the original public meaning of the Due Process of Law Clause, then "almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective." A strong originalist approach to constitutional interpretation would result in an extensive overturning of precedent, leading to legal upheaval. Moreover, the present public meaning approach makes the task of interpreting the Constitution more democratic--it employs meaning based on what America today looks like, rather than the unrepresentative America of the founding, where women and African Americans lacked the right to vote. And this approach requires judges to be more up front with their reasoning. Hiding goal-oriented decisions behind a haze of selective historic citations is no longer an option. Even if there is a lack of objectivity, the nature of the present public meaning approach makes it more likely that this will be apparent to the public.
Ramsey's brief remark does not lend itself to an extended, in-depth response, and I look forward to seeing if he and others have more to say. The version of the article that is currently online will be updated to incorporate at least some additional discussion of potential objections--in particular, I will be addressing likely objections from Christopher Green based on what he discusses in this article. Work, an impending wedding, and career moves have delayed these revisions, but they will be coming soon! In the meantime, comments are welcome!
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