Originalism and the Meaning of "Twenty Dollars": A Response to Heaney

I recently shared a draft of my forthcoming essay in the Creighton Law Review. Here's the abstract:

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment’s reference to “twenty dollars” means—both as a matter of original meaning and for interpreters today.

While this appears to be an easy question, I demonstrate that rather than telling modern legal actors what “twenty dollars” means, originalism instead leads to a range of highly divergent possibilities. The original meaning of “twenty dollars”—applied today—may mean anywhere from twenty modern dollars, to a little under four hundred dollars, to just about seven thousand dollars. In doing so, I illustrate high-level debates between originalists and their critics, and how these debates tend to stray away from the needs of actual actors. Originalist appeals to construction and distinguishing semantic and legal meaning are cold comfort to the hapless attorney or judge who just wants to know what “twenty dollars” means. Moreover, if originalism cannot tell modern legal actors what “twenty dollars” means, there’s little hope that it will provide meaningful assistance in resolving questions over broader, loaded terms like “due process,” “cruel and unusual punishment,” “equal protection,” and other provisions that draw the bulk of scholarly attention and constitutional litigation.

The essay was initially inspired by Lawrence Solum's article, "Surprising Originalism," in which he discusses the original meaning of the Seventh Amendment's "twenty dollars" clause at some length. Solum focuses on the phrase as an example of "linguistic drift"--the idea that the meaning of words changes over time. Solum argues that while "twenty dollars" may now seem to refer to a twenty-dollar bill (or twenty one-dollar bills--or whatever combination of bills and coins you may like), the original meaning of the phrase actually refers to the Spanish silver dollar (or "piece of eight") which was widely treated as a dollar in the founding era.

I won't get into the weeds of my arguments here, but, in short, even if we agree with Solum about the original meaning of "dollar," it's unclear what the term means for those applying it today. Do we equate the Seventh Amendment's language with the amount of silver contained in the Spanish silver dollar? Do we equate it with how much a founding-era silver dollar would fetch at auction? Do we tie the meaning to Congress's then-present definition of dollar? Do we look to Spain's current currency as a reference point? Depending on how we answer the question, the meaning of "twenty dollars" ranges between twenty modern US dollars and approximately $7,000. 

Additionally, there's a question over what the "original sense" of "twenty dollars" is, and whether it should be what we use in applying the Seventh Amendment to modern cases. Christopher Green distinguishes the sense of terms from their references, arguing that we should focus on the original sense of the Constitution, rather than particular referents. One could argue that the original "sense" of "dollar" is what Congress decides the term means through legislation, while objects like silver dollars and paper money are referents--objects to which the sense refers. This calls Solum's original point into question, although perhaps it doesn't--depending on how general a view we take of the original sense.

(This is, admittedly, an oversimplification, so those interested or with questions should check out the essay itself. It's not that long, don't worry!)

James Heaney has posted a thoughtful and thorough response to the essay at his Substack, De Civitate. Heaney compares my critique of originalism to similar arguments by Michael Stokes Paulsen against nonoriginalism. As Heaney summarizes:

Paulsen takes the constitutional provision that says “the president must be at least thirty-five years old” and applies the prevailing non-originalist approach to it. This approach interprets the text according to its purpose and the broader spirit of the Constitution in light of changing modern conditions, not the literal words “thirty-five years.”

As a result, Paulsen argues (successfully, in my view) that a court following modern non-originalist constitutional theory could (perhaps must) hold that no one under the age of 60 can be president. . . . This was obviously absurd, so the paper demonstrated that the “living constitution” theory had serious flaws, and originalism was the way to go instead.

With this background, Heaney pushes back on my argument, arguing (again--in summary) that all methods of interpretation result in some uncertainty, and originalism's uncertainty over "twenty dollars" is no different. Heaney argues that originalism still does a fair amount of useful work even if it doesn't get us all the way to a final answer--we at least have a range of potential meanings that's narrow enough to work with. Heaney goes on to take a stab at answering the question of what "twenty dollars" means, drawing on original meaning and the Coinage Clause of Article I, section 8 to argue, in essence, that a dollar is whatever Congress defines it to be. To an extent, this reflects the original sense approach that I discuss above, and in the essay, but it also reminds me of the approach that John McGinnis and Michael Rappaport tend to advocate, which is to read the Constitution as consisting largely (if not entirely) of legal terms with technical meanings readily apparent to those in the founding era. In doing so, McGinnis and Rappaport argue, one can circumvent the unpredictable and malleable process of applying original meaning to present circumstances through "constitutional construction." Instead, the thick, technical original meaning is enough to do the job.

Heaney closes his discussion by expressing frustration with certain critiques of originalism that he deems the "Eric Segall school of constitutional thinking":

Their conclusion is always, always the same: “I don’t think originalism can honestly solve the problem I have posed, therefore originalism is a worthless fraud and originalists are just making up justifications for imposing their own policy preferences on the land.”

I do think originalism can honestly solve the problems these professors have posed, including the one in this paper. Originalism has been growing in response to academic critique for forty years, from the fragile beginnings of Edwin Meese, Robert Bork, and Original Intent back before I was born, to its present young adulthood as Originalist-Textualism. The method is not perfect, nor is it even finished growing, but originalism is trying to provide an interpretive methodology for judges that isn’t just “I’m an unelected judge and I think abortions are good so abortion is a constitutional right now” (or “I like babies so abortion is unconstitutional now”). When originalist theory falls short (and it has), originalist scholars try to find a path forward.

After all, what’s the alternative? The Eric Segall school accuses originalist judges of covertly imposing their own value judgments on the nation… but their theory of constitutional interpretation is that judges should openly impose their own value judgments! I try my hardest to protect my legal objectivity from being corrupted by my value judgments, which is admittedly hard, and the other side jeers at my side whenever we slip (as we all do)… but they tell me that it is impossible to be objective, that I should let my value judgments drive my legal theorizing!

Heaney does acknowledge that I do offer a potential alternative to originalism and highlights another paper I've written in which I propose a "present public meaning" approach to interpretation. He suggests that this approach may still lead to unusual or absurd results, focusing on Article IV, section 4, which states:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Heaney argues that a present public meaning approach could result in a reading that the Constitution requires the government of each state to be made up of officials associated with the Republican party. While some people (Heaney admits to being one of them) may be pleased with this outcome, Heaney argues that many would likely see this as an absurd result.

Throughout his essay, Heaney's discussion is thorough and approachable, and I think his answer regarding the meaning of twenty dollars is well-argued (although I'm not sure it is the correct answer as I remain unconvinced that there is one correct answer). I do have some qualms with some of his arguments, particularly his characterization of nonoriginalists and their critiques. To this end, I offer the following reactions to Heaney's discussion:

First, in his discussion of Paulsen's argument and his critique of the "Eric Segall school" of originalism critiques, Heaney falls into a common trap of assuming the undertheorization of nonoriginalist interpretive methods. This approach to nonoriginalism to portray it as  atextualist purposivism (as portrayed by Paulsen) or as little more than the notion that judges should decide cases based on their value judgments. When Heaney isn't using this characterization, he resorts to a near-parodical version of atextualist purposivism in summarizing Paulsen's discussion of nonoriginalist methods. 

But nonoriginalism isn't undertheorized, and many of its variations rely on the Constitution's text. Indeed, Heaney acknowledges this by highlighting the present public meaning approach that Frederick Schauer and I set forth. Other approaches include a common law approach to interpretation (most prominently set forth by David Strauss), which focuses more on constitutional case law that grows over time--providing constraint through stare decisis, but permitting gradual change as society, technology, and other relevant facts change. Even theories like Dworkin's moral readings approach, which lean into interpretations that further certain moral goals, also look to whether the readings fit with prior case law and the Constitution's text as a whole.

Defining nonoriginalism as little more than judging based on values isn't unique to Heaney's response. Many originalists, including those who, at times, acknowledge the sophistication and development of nonoriginalist theories, fall into this habit. In fact, I've seen so much of this that one of my current (though early-stage) projects is to develop a taxonomy of these living constitutionalist strawmen and how they fit into (and detract from) broader debates over originalism. Depending on how smoothly my move to Texas goes this summer (and assuming my research bears fruit), I expect to have a draft ready in sometime between two months and one year from now. If this range isn't all that helpful, think of how attorneys and judges trying to interpret the Seventh Amendment must feel.

Second, in Heaney's critique of Eric Segall's work, he seems to downplay the importance of transparency in constitutional interpretation. As I tend to see things (and as Segall sees things as well--based on what he says in about every other episode of his excellent podcast), value judgments are already doing most, if not all, of the significant work in decisions that are purportedly originalist or based on history and tradition. The difference between originalism and an explicitly value-based approach to interpretation is that the originalists hide behind a smokescreen of purportedly neutral historical analysis while reaching outcomes indistinguishable from those an explicitly value-based method would reach. I examine this contrast in the context of common good constitutionalism at a bit more length in an essay here.

Third, while Heaney argues that originalism still does meaningful work by narrowing a range of potential interpretations, this work still leaves much to be desired by legal actors who must arrive at a single outcome. Originalism is a textualist theory, and the text does some work. I'll readily admit that originalism tells us that "twenty dollars" does not mean something like "armadillo," "Belgium," or "courage." But this work isn't enough, as it still leaves the litigant or judge with a range of meanings extending from twenty dollars to $7,000--not the most helpful situation for interpreters. And it's unclear what work originalism does beyond ahistorical textualism other than exacerbating uncertainty. Finally, I suspect that the range of potential interpretations may become even harder to work with as the provisions at issue become more morally loaded and abstract.

Fourth, I appreciate that Heaney highlighted my article on present public meaning--the final version of which is finally published and posted to SSRN. Check it out!

Heaney argues that the present public meaning approach may lead to absurd results, highlighting the Article IV, Section 4 guarantee of "a Republican form of government." Heaney argues that this clause, under the present public meaning approach, could be read as requiring the federal government to ensure that the Republican party remains in control of governments at the state level. While I'm still thinking through this particular argument, I think that the argument about reading provisions in context--an argument I make in response to a similar potential argument involving the same clause's mention of "domestic Violence"--likely forecloses Heaney's hypothetical interpretation. 

Still, I have some initial thoughts on the issue. Looking at the clause from a modern perspective, interpreters will still likely acknowledge that there are multiple definitions of "Republican," including the political party, and a form of government that derives its power from the people--either directly or through the use of representatives. The question then becomes, which reading fits with the context of the clause as a whole and the document as a whole? From both perspectives, the latter interpretation--"Republican" as a representative government, rather than the political party--fits best. Taking the clause as a whole, the term "Republican" must be read in the context of the text immediately following, "form of government." This doesn't seem to fit with "Republican" as political party--as a party designation is not the same as a form of government. While Republican ideology may call for a certain form of government, the fact that the form of government and the party are two separate concepts strains a reading of "Republican form of government" to mean a government made up of Republicans. Heaney (or anyone used to fighting over contract language) may counter that "Republican" is capitalized, which lends strength to the "Republican Party" interpretation. But, again, context undermines this argument, as the clause as a whole (as well as much of the Constitution) includes frequent, sporadic capitalization--undermining the argument that capitalization carries special significance. Finally, in the context of the Constitution as a whole, which consists of foundational provisions for the operation of government without language explicitly acknowledging the existence of political parties, a "Republican Party" reading is out of place. All of this follows from an examination of context alone, rather than a recourse to original intent or original meaning.

Again, these are only my initial, half-formed thoughts on the "Republican" example. I'll likely develop this, and other examples, in what I hope will be an eventual paper on the notion of linguistic drift and why concerns about it are overblown. The paper is relatively high on my to-write list, but it may not materialize until a while from now (the living constitutionalism paper I highlighted earlier, for example, is higher on the priority list). So, based on my earlier estimate, a draft of this paper may be ready within two months and one week and a year and a half from now. Stay tuned!

I appreciate Heaney's discussion of my article, and I'll keep his points in mind during revisions, which are due in just over a week. Will I be able to adequately account for these critiques, account for editor comments, and do my own thorough review while grading? We'll see!

Professional Updates and Recent Scholarship

Blogging has been light over the past year because I've been getting accustomed to a career as a legal academic. A little over a year ago, I began searching for visiting positions at law schools around the country, and ended up with an offer from the University of Idaho College of Law. I've just wrapped up my spring semester of teaching Criminal Procedure (Adjudications) and First Amendment Law. I taught Constitutional Law II in the fall.

I've been used to keeping my professional work and my blogging separate because, up until relatively recently, I've wanted to avoid sharing information about my clients and cases. This desire to keep my professional work and blogging separate also was a large factor in what became my main research focuses: constitutional law and criminal law. For the most part, I did not practice much, if at all, in either area--and to the extent that there was any overlap, I avoided writing on topics that had the potential to veer into what I was doing at my day job.

Now, things will likely change. In the fall, I will be beginning a tenure-track position at St. Mary's University School of Law in San Antonio, Texas. I'll be teaching criminal law, criminal procedure, and some other courses that have yet to be determined (although I have some ideas and preferences that I'll hopefully be able to put into practice in the near future). I've had a fantastic experience at Idaho. The faculty here have been excellent mentors and have given me invaluable advice on teaching and navigating the academic job market. The students have been excellent--their opinions, insights, participation, and preparation have been consistently top-notch, and my departure is bittersweet as I won't have the opportunity to teach the students who will be continuing into their third year in the fall.

Blogging has been light because I've redirected a lot of my writing time to my scholarship. I've written a lot over the past year. I've shared a bit of what I've written, but only a small part of it. As always, my SSRN page is here and is fairly up to date. I've also been blogging less because I've been trying to write more short pieces as op-eds in order to reach a wider audience. As I work toward balancing my time teaching and writing, I'll be trying to blog more in the coming months.

Finally, a summary of my recent scholarly work. I've been pursuing something of a three-track research agenda: (1) constitutional law--particularly constitutional interpretation, originalism, and related issues; (2) criminal law--particularly odd laws and how certain criminal laws fail to achieve certain normative ideals like democratic legitimacy; and (3) odd law--odd or obscure laws that I find interesting and feel compelled to explore.

Recent work in each of these areas includes:

Constitutional Law

Multiple articles on the Court's last term and its turn to history and tradition, including an argument that the Court is turning away from original public meaning originalism, and a critique of the Court's history and tradition approach--specifically as applied in New York State Rifle & Pistol Association, Inc. v. Bruen.

An article on how debates over theories of constitutional interpretation must account for disingenuous and incompetent interpreters. I argue that certain theories may lend themselves to abuse or mistake more than others, and that one cannot simply dodge this issue by claiming that only the interpreter is to blame rather than the theory.

Some essays, including an illustration of problems with originalism in the context of interpreting the original meaning of "Twenty Dollars," an essay (coauthored with Al Hiland) on how the Court's history and tradition approach may be employed to overturn New York Times v. Sullivan, and an essay comparing originalism and common good constitutionalism under a transparency rubric.

Criminal Law

An article on criminal laws that appear to remain on the books despite strong indications that they are contrary to the will of a majority of those subject to the laws. I'll be following this article up soon with an article focusing on crimes appearing in state constitutions.

Odd Law

A deep dive into Idaho's tort of seduction, including the historical origins of the tort, constitutional challenges to the tort in other jurisdictions, and how Idaho's statute-based cause of action for seduction is different from other "heart-balm" actions like alienation of affection and criminal conversation.

There will be much more to come in all of these areas, so stay tuned!