Richard H. Fallon

This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (“PMO”) ascends toward a position of dominance within the Supreme Court, both practitioners and critics should recognize the limited capacity of historical and linguistic facts to settle modern issues.

To understand successful constitutional communication, this Article argues, requires a distinction between “minimal” original public meanings, which either are entailed by language and logic or are otherwise noncontroversial, and the richer and more determinate meanings that originalists often purport to discover. When the Constitution says that each state shall have “two Senators,” “two” means two. By contrast, when members of the Founding generation disagreed about the meaning of a constitutional provision—as they frequently did—the idea of a uniquely correct and determinate more-than-minimal meaning that existed as a matter of linguistic and historical fact is chimerical. Judges can of course reach determinate conclusions, but seldom can those dispute-resolving conclusions be ones of simple historical fact.

Insofar as practitioners of PMO—including Justices of the Supreme Court—purport to discover more-than-minimal original public meanings that provide determinate resolutions to contested cases, skepticism is in order. The problem with claims about more-than-minimal original public meanings is conceptual, not epistemological. Although public meaning originalists speak of “evidence” establishing the historical validity of disputed claims about original public meanings, they have no adequate account of what, exactly, the evidence is supposed to be evidence of. Beyond historical facts about who said and believed different things at particular times, there is no further, diversity-transcending fact of an original public meaning that extends beyond minimal and noncontroversial meanings.

After identifying the conceptual limitations of public meaning originalism, this Article examines the resulting challenges for both theorists of PMO and for originalist and nonoriginalist Justices alike. It also draws lessons concerning the nature of and necessary conditions for successful constitutional communication across generations.

Introduction

With the confirmation of Justice Amy Coney Barrett as an Associate Justice of the Supreme Court, originalism has moved to center stage once more in constitutional debates in the United States. Justice Barrett self-identifies as an originalist.¹ 1.See, e.g., Full Transcript: Read Judge Amy Coney Barrett’s Remarks, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/2020/09/26/us/politics/full-transcript-amy-coney-barrett.html [https://perma.cc/J48S-S8ZC] (“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too.”); Nomination of the Honorable Amy Coney Barrett to Be an Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 116th Cong. 4 (2020) (opening statement of Amy Coney Barrett) (arguing judges should “interpret[] our Constitution and laws as they are written”); see also Kanter v. Barr, 919 F.3d 437, 454–65 (7th Cir. 2019) (Barrett, J., dissenting) (exemplifying, in the Second Amendment context, Justice Barrett’s emphasis on historical analysis).Show More So does Justice Neil Gorsuch,² 2.See, e.g., Neil Gorsuch, A Republic, If You Can Keep It 116–27 (2019) (advancing defense of originalism); Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1381 (2018) (Gorsuch, J., dissenting) (contending that “[t]he Constitution’s original public meaning supplies the key” to its interpretation).Show More whom President Trump nominated and the Senate confirmed to succeed Justice Antonin Scalia. Justice Clarence Thomas has long argued for judicial decision making based on “the original public meaning” of the Constitution.³ 3.See, e.g., Rosenkranz Originalism Conference Features Justice Thomas ’74, Yale Law School (Nov. 4, 2019), https://law.yale.edu/yls-today/news/rosenkranz-originalism-conference-features-justice-thomas-74 [https://perma.cc/3SKV-9LBQ] (quoting Justice Thomas as saying that modern day originalists should “give the words and phrases used by [authors] natural meaning in context” and that doing otherwise “usurps power from the people”); see also Gregory E. Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas?, 4 N.Y.U. J.L. & Liberty 494, 495, 511 (2009) (describing Justice Thomas’ originalism).Show More Justice Samuel Alito has characterized himself as “a practical originalist.”⁴ 4.Matthew Walther, Sam Alito: A Civil Man, American Spectator (Apr. 21, 2014, 12:00 AM), https://spectator.org/sam-alito-a-civil-man [https://perma.cc/XD92-CVGH] (“I think I would consider myself a practical originalist.”); see also Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito, 87 Geo. Wash. L Rev. 507, 512 (2019) (observing that a “theme of Justice Alito’s jurisprudence is originalism, though not in the traditional sense of the word that one might associate with Justice Scalia”).Show More

With the prospect that originalist Justices might transform our constitutional law now a palpable one, the question “What is originalism?” deserves close re-consideration. Re-consideration is warranted, despite a bulging catalogue of books and articles debating originalism, because originalism—as originalists themselves sometimes emphasize—has always been and remains a “work in progress.”⁵ 5.Scott Soames, Originalism and Legitimacy, 18 Geo. J.L. & Pub. Pol’y 241, 246 (2020) [hereinafter Soames, Originalism and Legitimacy]. For a brief history of originalism, see Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory, in The Challenge of Originalism: Theories of Constitutional Interpretation 12, 12 (Grant Huscroft & Bradley W. Miller eds., 2011).Show More

The leading current version is public meaning originalism (“PMO”).⁶ 6.See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1251 (2019) (“Most contemporary originalists aim to recover the public meaning of the constitutional text at the time each provision was framed and ratified; this has been the dominant form of originalism since the mid-1980s.”); Jamal Greene, The Case for Original Intent, 80 Geo. Wash. L. Rev. 1683, 1684 (2012) (“Today, most academic originalists and even some living constitutionalists say that constitutional interpretation should proceed, first and foremost, from the original meaning of the text at issue.”); Steven G. Calabresi & Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648, 649 (2016) (asserting that “all modern originalists . . . are original public meaning textualists”). But cf. Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156, 158 (2017) (noting that “[a] number of scholars, this author among them, have argued for shifting focus from original meaning to our original law”).Professor Solum distinguishes four varieties of originalism in addition to public meaning originalism: Original Intentions Originalism (“The original meaning of the constitutional text is the meaning that the framers intended to convey.”); Ratifiers’ Understandings Originalism (“The original meaning of the constitutional text is the meaning conveyed to the ratifiers of each provision.”); Original Methods Originalism (“The original meaning of the constitutional text is the meaning produced by application of the original methods of constitutional interpretation and construction to the text.”); and Original Law Originalism (“The law in effect at the time the Constitution was ratified is legally binding unless it was changed by methods authorized by the original law.”). Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2017 B.Y.U. L. Rev. 1621, 1627 [hereinafter Solum, Triangulating Public Meaning]. For an alternative, critical typology, see Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 247–62 (2009).Show More Justice Scalia was a founding member of the public meaning originalist school,⁷ 7.See Antonin Scalia, Address Before the Attorney General’s Conference on Economic Liberties in Washington, D.C. (June 14, 1986), in Original Meaning Jurisprudence: A Sourcebook 101, 106 (U.S. Dep’t of Just. ed., 1987) (arguing that originalists “ought to campaign to change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning”); see also Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L.J. 1113, 1139 (2003) (characterizing Justice Scalia as “original meaning textualism’s patron saint”).Show More with which Justices Thomas, Gorsuch, and Barrett also have associated themselves.⁸ 8.See sources cited supra notes 1–4.Show More Public meaning originalists do not all agree about everything, but they coalesce around a central tenet: the original and unchanging meaning of a constitutional provision is either (1) what a reasonable person who knew the publicly available facts about the context of its drafting would have taken it to mean⁹ 9.See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (“In their full context, words mean what they conveyed to reasonable people at the time they were written.”); Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 92 (2004) (“‘[O]riginal [public] meaning’ originalism seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment.”); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001) [hereinafter Barnett, Commerce Clause]; Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 Const. Comment. 47, 48 (2006) (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people . . . but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1440 (2014) (“[T]he true, original public meaning of the language employed . . . [is] the objective meaning the words would have had, in historical, linguistic, and political context, to a reasonable, informed speaker and reader of the English language at the time that they were adopted.”).Show More or (2) what literate and informed members of the public actually understood it to be,¹⁰ 10.See, e.g., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 60 (1999) (asserting that the process of ratification gave the constitutional “text the meaning that was publicly understood”); Lawrence B. Solum, Cooley’s Constitutional Limitations and Constitutional Originalism, 18 Geo. J.L. & Pub. Pol’y 49, 57 (2020) [hereinafter Solum, Cooley’s Constitutional Limitations] (“The original meaning of the constitutional text is best understood as the meaning communicated to the public at the time each provision was framed and ratified.”); Lawrence B. Solum, Originalist Theory and Precedent: A Public Meaning Approach, 33 Const. Comment. 451, 453 (2018) [hereinafter Solum, Originalist Theory] (“The public meaning of the constitutional text is . . . the content communicated to the public by the text and the publicly available context of constitutional communication.”); Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1136 (1998) (“Originalism is the idea that the words of the Constitution must be understood as they were understood by the ratifying public at the time of enactment.”).Show More at the time of its promulgation. Although these two formulations diverge as a conceptual matter, the practical difference is usually small. Because there is typically no way of discovering at the individual level what most people understood a provision’s meaning to be at the time of its ratification, originalist inquiries tend to focus on what those who knew its language and the publicly available facts about its drafting would reasonably or most reasonably would have understood it to communicate.¹¹ 11.To take a single illustrative example, Professor Lawrence Solum, who frequently defines original public meanings by reference to “the meaning communicated to the public,” see Solum, Cooley’s Constitutional Limitations, supra note 10, at 57, criticizes the efforts to discern original meanings by historians who focus primarily on assertions by particular historical figures and do not attend sufficiently to “the communicative content of the text” by closely examining its “semantics or pragmatics.” Solum, Triangulating Public Meaning, supra note 6, at 1653–54.Show More

Two primary assumptions link practitioners of PMO as adherents of a single school or approach. First, PMO assumes that members of the Framing generation would have discovered the linguistic meaning of constitutional provisions in roughly the same way that they would have ascertained the meaning of utterances in ordinary conversation.¹² 12.See, e.g., Scott Soames, Interpreting Legal Texts: What Is, and What Is Not, Special About the Law, in 1 Philosophical Essays: Natural Language: What It Means and How We Use It 403, 403 (Scott Soames ed., 2009) [hereinafter Soames, Interpreting Legal Texts] (arguing that “[p]rogress can . . . be made . . . by seeing [legal and statutory interpretation] as an instance of the more general question of what determines the contents of ordinary linguistic texts”); Lawrence B. Solum, Semantic Originalism 28 (Ill. Pub. L. & Legal Theory Rsch. Paper Series, Research Paper No. 07-24, 2008), available at http://papers. ssrn.com/sol3/papers.cfm?abstract_id=1120244 [https://perma.cc/625M-RML5] (describing the Constitution as a “text” and explaining the central role of semantic theory, framed as “the theory of the meaning of utterances,” in establishing the “linguistic meaning” of constitutional provisions).Show More Public meaning originalists acknowledge that the “model of conversational interpretation”¹³ 13.See Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 275 (2019); cf. Saul Cornell, President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era, 89 Fordham L. Rev. 1761 (2021) (referring to “[t]he ‘standard communication model’ favored by many originalists”).Show More may require modest adaptations to address the peculiarities of constitutional interpretation.¹⁴ 14.See infra notes 52–53 and accompanying text.Show More Nonetheless, they insist, the interpretive methods that structure conversational interpretation furnish a workable template for ascertaining constitutional meanings. I call this the Interpretive Methodology Assumption.

Second, PMO posits that the original meanings of constitutional provisions, like those of conversational utterances, exist as a matter of historical and linguistic fact.¹⁵ 15.See Lawrence B. Solum, Originalist Methodology, 84 U. Chi. L. Rev. 269, 278 (2017) [hereinafter Solum, Originalist Methodology] (“[T]he communicative content of the constitutional text is a fact.”); Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 12 (2015) [hereinafter Solum, Fixation Thesis] (“The communicative content of a text is determined by linguistic facts . . . and by facts about the context in which the text was written. Interpretations are either true or false—although in some cases we may not have sufficient evidence to show that a particular interpretation is true or false.”); Soames, Originalism and Legitimacy, supra note 5, at 248 (asserting that “[t]he contents” of statutes and other linguistic acts by collective bodies “is, in principle, derivable from the relevant, publicly available, linguistic and non-linguistic facts”).Show More The factual status of original public meanings inheres in the conjunction of empirical facts about words’ meanings, rules of grammar and syntax, political events leading up to constitutional provisions’ adoptions, and the theoretical, meaning-generating premises of the model of conversational interpretation as adapted to constitutional interpretation.¹⁶ 16.See Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame L. Rev. 479, 497–98 (2013) [hereinafter Solum, Communicative Content] (defining public meaning as “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”).Show More I call this the Conceptual Assumption.

This Article argues that original public meanings, in the sense in which originalists use that term, are insufficient to resolve any historically contested or otherwise reasonably disputable issue¹⁷ 17.For a different argument to a similar conclusion, see Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 714 (2011) (arguing that the most sophisticated versions of “the New Originalism” have responded to criticisms of “the Old Originalism” with adaptations that severely limit their claims to determinacy).Show More—an important qualification that I shall explain shortly. The two central assumptions that undergird PMO will not withstand analysis. PMO’s Interpretive Methodology Assumption is untenable. Without it, the Conceptual Assumption crumbles as well.

PMO’s difficulties begin with the Interpretive Methodology Assumption that we can identify linguistic meanings of constitutional provisions that are determinate enough to settle disputed questions by using substantially the same, largely unselfconscious techniques that we employ in interpreting conversational utterances. Given this assumption, PMO equates the meaning of a constitutional provision (or what some philosophers would call a provision’s assertive or communicative content¹⁸ 18.This is the preferred, technical vocabulary of the public meaning originalists who draw most explicitly on the conceptual apparatus of the philosophy of language. See infra notes 54–56 and accompanying text.Show More) with what either reasonable people or actual people who are assumed to be reasonable would have taken it to mean in the context of its promulgation. But the assimilation of constitutional to conversational interpretation grows problematic when one probes which elements of context a reasonable listener normally takes into account in determining what a remark communicates, asserts, or stipulates. Almost self-evidently, the identity of the speaker matters crucially. Depending on who the speaker was, reasonable people would make different assumptions about the “interpretive common ground”¹⁹ 19.My usage follows that of Professor Mark Richard, who defines interpretive common ground as shared presuppositions. See Mark Richard, Meanings as Species 3 (2019).Show More that they share with the speaker and about the speaker’s likely communicative intentions. If someone tells me, “Let’s meet at our usual spot at the usual time,” information of this kind will contribute decisively to the meaning (or communicative content) of her utterance. In the case of constitutional provisions, however, there typically is no unitary speaker.²⁰ 20.See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 213–15 (1980); Solum, supra note 12, at 40.Show More Constitutional provisions frequently have multiple or in some cases unknown authors who may have had different communicative intentions and held different assumptions about how the public would understand their words.²¹ 21.See infra Subsection II.A.2.a.Show More

Public meaning originalists have diverse strategies for evading this difficulty, mostly by imagining the “reasonable” audience for constitutional provisions as endowed with qualities that make attention to speakers’ particularized communicative intentions unnecessary.²² 22.See infra notes 167–191 and accompanying text.Show More But none of those strategies succeeds. It is impossible to give even a modestly rich description of the “context” of constitutional provisions’ promulgation without taking account of who the promulgators were and what understandings or responses they aimed to provoke in their audiences.

The model of conversational interpretation also fails to fit the case of constitutional interpretation for reasons involving the idea of a “reasonable” reader of constitutional provisions whose judgments determine those provisions’ original meanings. Among other things, the audiences for constitutional provisions are diverse. In addition, we know as a matter of historical fact that different, informed, and evidently reasonable people who were alive at the time of constitutional provisions’ promulgation have often disagreed about what those provisions meant.²³ 23.See infra Subsection III.B.1 (observing disagreement about the meanings of multiple constitutional provisions).Show More

In cases of disagreement, one approach to ascertaining original public meaning would be to investigate what different people who were alive at the time actually thought and to seek to discover whether there was a majority—or failing that, a plurality—view. Indeed, one might expect PMO adherents who equate public meanings with actual people’s historical understandings to pursue that strategy.²⁴ 24.See supra note 10 and accompanying text (citing examples of such PMO adherents).Show More Yet I know of no originalist who has worked out a methodology for calculating how many citizens of the past qualified as sufficiently informed to judge the meanings of particular constitutional provisions competently, for identifying how many had one understanding of a disputed provision in comparison with another, and for resolving disagreements by one or another numerically-based protocol.²⁵ 25.See, e.g., Richard A. Primus, When Should Original Meanings Matter?, 107 Mich. L. Rev. 165, 214 (2008) (“[W]hen [originalist material] speaks in many voices, there is no way to settle the question of whether a view expressed in the Pennsylvania ratifying convention is more or less authoritative than a view expressed in the newspapers of Massachusetts.”).Show More Rather, as I have said, when it comes to the actual practice of PMO, the touchstone for virtually all inquiries is a hypothetical, reasonable person and the conclusions that such a being would have drawn in light of publicly available evidence.²⁶ 26.See, e.g., Lawson & Seidman, supra note 9, at 48 (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people—whether drafters, ratifiers, or commentators, however distinguished and significant within the drafting and ratification process they may have been—but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); cf. Solum, Triangulating Public Meaning, supra note 6, at 1637 (“Original public meaning should be distinguished from what have been called ‘original expected application[s].’”).Show More

The unworkability of the model of conversational interpretation as a template for ascertaining the uniquely correct, fact-of-the-matter meanings of constitutional provisions points to an equally shattering conclusion concerning PMO’s Conceptual Assumption: original constitutional meanings that are ascertainable as a matter of historical fact, which are PMO’s Holy Grail, do not exist in forms capable of resolving any historically or reasonably disputed issue.

I restrict my thesis to reasonably disputed cases because, although identifying the meaning of an utterance in context often requires knowing who the speaker was and what she intended to convey, sometimes there may be no reasonable doubt on any relevant score. For example, when Article I, Section 3, Clause 1 provides that “[t]he Senate of the United States shall be composed of two Senators from each State,”²⁷ 27.U.S. Const. art. I, § 3, cl. 1.Show More its meaning or communicative content is unmistakable. “Two” means two. The term “each State” refers to the States of the United States. It is equally clear that no provision of the Fourteenth Amendment, read in its linguistic and historical context, requires that citizens of the United States eat cornflakes for breakfast. Reaching these conclusions requires no fine-grained knowledge about the relevant provisions’ authors or about possibly divergent linguistic, historical, biographical, or political assumptions among their audiences. In cases such as these, it suffices to assume that the speaker or speakers—whoever they may have been—would have had what I shall call the “minimal” communicative intentions that would be necessary to make a provision intelligible in its linguistic, historical, and institutional context.²⁸ 28.This usage echoes Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 284–85 (2009) (positing that legislators should be assumed to vote for legislation with the “minimal intention” to make law that will be “understood” in accordance with the norms of “their legal culture”).Show More These would include such intentions as to create binding law and to convey, in English, whatever a reasonable listener would necessarily or noncontroversially understand the words of the provision either to require, provide, or stipulate or not to require, provide, or stipulate in light of publicly known facts about their drafting.²⁹ 29.Ryan C. Williams, The Ninth Amendment as a Rule of Construction, 111 Colum. L. Rev. 498, 544 (2011), proposes a test along these lines. For discussion of the details and implications of his proposal, see infra notes 207–08 and accompanying text.Show More In cases of evidently unanimous historical understanding, we could thus say that those provisions had the minimal original meanings and non-meanings on which everyone or nearly everyone living at the time either converged or would have converged. If originalists defined constitutional provisions’ original public meanings as limited to their minimal meanings and non-meanings, then I would offer no conceptual objection to claims that uniquely correct original public meanings could be identified as a matter of historical and linguistic fact.

In practice, however, I know of almost no originalists who accept that original public meanings are limited to minimal meanings as I have defined that term. Although there are exceptions, including Professor Jack Balkin,³⁰ 30.See, e.g., Jack M. Balkin, Living Originalism 21 (2011) (defending “framework originalism”) [hereinafter Balkin, Living Originalism]; Jack M. Balkin, The Construction of Original Public Meaning, 31 Const. Comment. 71, 80 (2016) [hereinafter Balkin, Construction].Show More public meaning originalists characteristically advance their theories with more substantial ambitions than clarifying how original public meanings can resolve such non-debates as whether Article I requires that each state should have exactly two Senators or whether the Equal Protection Clause mandates that everyone eat cornflakes. Certainly, this is true of the Justices of the Supreme Court who self-identify as originalists. Rather than defining the original public meaning as limited to minimally necessary (for intelligibility) or historically noncontroversial meaning, mainstream public meaning originalists posit that constitutional provisions’ original public meanings consist of minimal meanings plus some further content that, they maintain, can also be discovered as a matter of historical and linguistic fact.³¹ 31.See infra Section I.A.Show More To put the point more concretely, they believe that there is a historically and linguistically discoverable original public meaning that is capable of resolving, as a matter of fact, such historically disputed questions as whether the Second Amendment, the preamble to which refers to the importance of “a well regulated Militia,” safeguards a personal right “to keep and bear arms” for purposes of self-defense;³² 32.U.S. Const. amend. II. See District of Columbia v. Heller, 554 U.S. 570, 576 (2008) (grounding the conclusion that the Second Amendment protects a personal right to possess arms for self-defense in “the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’” (quoting United States v. Sprague, 282 U.S. 716, 731 (1931))); id. at 652–79 (Stevens, J., dissenting) (analyzing Second Amendment’s historical context and concluding that any rights that it created were linked to service in a well-regulated militia); see also Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 Harv. L. Rev. 246, 246 (2008) (“Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning.”); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 924 (2009) (contending that Heller offered “the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court”).Show More whether the Free Speech Clause of the First Amendment protects corporate spending to influence political campaigns;³³ 33.See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 385–93 (2010) (Scalia, J., concurring) (emphasizing majority opinion’s consistency with original public meaning of the First Amendment); id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (disputing this analysis); see also Leo E. Strine, Jr. & Nicholas Walter, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, 91 Notre Dame L. Rev. 877, 878 (2016) (providing an overview of the historical dispute between the two opinions).Show More and whether the Fourteenth Amendment bars discrimination on the basis of sex or sexual orientation.³⁴ 34.See, e.g., Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”); id. at 726 (Thomas, J., dissenting) (charging the Court with “los[ing] its way” in “deviating from the original meaning of the [Due Process] Clauses”); cf. Calabresi & Begley, supra note 6, at 652–54 (2016) (challenging Justice Thomas’s approach and offering originalist defense of Obergefell).Show More Historically disputable issues such as these dominate the Supreme Court’s docket of constitutional cases.

In cases of this kind, claims that determinate original public meanings existed as a matter of historical and linguistic fact reflect a conceptual or metaphysical mistake.³⁵ 35.On the distinction between the metaphysics of meaning and the epistemological issues involved in its ascertainment, see Michael Devitt, Three Methodological Flaws of Linguistic Pragmatism, in What Is Said and What Is Not: The Semantics/Pragmatics Interface 285, 285–86 (Carlo Penco & Filippo Domaneschi eds., 2013).Show More Beyond minimal meanings, there is no single historical fact of the matter about what disputed constitutional provisions more determinately meant and, thus, no determinate original public meaning.³⁶ 36.Cf. Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529, 601–02 (2008) (noting the pointlessness of seeking to establish “the standard of proof necessary to establish a ‘fact’ that never existed”).Show More Insofar as originalists equate the original public meaning with what a reasonable person would have concluded, they mistakenly seek to answer an epistemological question, involving how best to ascertain what the original public meaning was, without first resolving a logically prior conceptual or metaphysical question. That question is whether original public meanings that are broader than minimal meanings exist in a form that a reasonable person could identify as a matter of historical or linguistic fact—that is, without making a judgment about which interpretation would be best in some normative sense or without invoking a challengeable theory of what makes the meaning that some ascribed to a constitutional provision, but that others did not, the true original public meaning. Charged with ascertaining the original public meaning of a constitutional provision, a reasonable decision-maker could not sensibly begin with the question, “What would a reasonable person think the original meaning was?” Instead, a reasonable decision-maker would need to begin with a theory of what in the world makes it true that constitutional provisions have particular original public meanings (if they do) so that the mode of inquiry could be adjudged reasonable or reliable.³⁷ 37.A comparison with other contexts in which the law employs “reasonable person” standards confirms this conclusion. The most characteristic function of “reasonable person” standards is to embody reasonableness in a particular domain of thought, action, or disposition. See Christopher Jackson, Reasonable Persons, Reasonable Circumstances, 50 San Diego L. Rev. 651, 655 (2013) (quoting Peter Westen, Individualizing the Reasonable Person in Criminal Law, 2 Crim. L. & Phil. 137, 139 (2008)) (asserting that “[a] reasonable person is reasonableness rendered incarnate”). In seeking to resolve disputed questions, the reasonable person pursues the methods of inquiry appropriate to achievement of true beliefs about the matter in question. See John Gardner, The Mysterious Case of the Reasonable Person, 51 U. Toronto L.J. 273, 273 (2001) [hereinafter Gardner, The Mysterious Case] (defining the “reasonable person” as a “justified” person whose actions satisfy the standards of justification appropriate for actions of the relevant kind and whose beliefs are similarly justified); John Gardner, Reasonable Person Standard, in The International Encyclopedia of Ethics (Hugh LaFollette ed., 2019) (“When the law’s question is what the reasonable person would [believe], the answer is that she would have reasonable [beliefs].”). The deep, underlying assumption is that true beliefs are possible.Show More

With that challenge on the table, I take the original public meaning of constitutional provisions, as public meaning originalists use the term, to be a theoretical construct in the same way that “gross domestic product” and “IQ”—to take two quite disparate examples—are theoretical constructs.³⁸ 38.Cf. Balkin, Construction, supra note 30, at 78 (terming the original public meaning “a constructed entity”); Jack M. Balkin, Lawyers and Historians Argue About the Constitution, 35 Const. Comment. 345, 369 (2020) (“‘Original public meaning’ is a theoretical construction, a mediated account of the past that serves the purposes of law and legal theory.”).Show More To be more precise, the original public meaning of a constitutional provision is partly a function of the theory by which the original public meaning is defined. Reliance on a “reasonable person” standard could thus furnish meaningful standards of inquiry only if public meaning originalists had a sufficiently specified theory to tell reasonable inquirers what they ought to look for and ultimately how to produce correct results. A theory linked instead to what people actually thought or believed would have parallel problems. Since very few people would likely have studied the language of proposed provisions or reflected thoughtfully on their implications for particular issues, such a theory needs an account of which mental states or dispositions mattered. It would also have to specify the conditions under which a contested view should count as the singularly correct original meaning. When confronted with theoretical and conceptual challenges such as these, PMO comes up dramatically short.³⁹ 39.See, e.g., Richard S. Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. Rev. 703, 720 (2009) (“Public meaning is, quite explicitly, an artificial construct. The qualifying criteria . . . depend on assumptions about how some chosen hypothetical speaker of the language would apprehend the text at issue. Even in theory there is no ‘right answer.’”). According to Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. (forthcoming Dec. 2021) (manuscript at 52) (on file with author) [hereinafter Solum, Public Meaning Thesis], “When there is controversy over the public meaning, we aim for the interpretation that best explains all the available evidence.” Although this formulation presupposes the existence of a theory that identifies some “evidence” as relevant and supports inferences about the relationship of evidence to conclusions, Professor Solum never articulates the theory on which he relies.Show More Without clear criteria for identifying the truth conditions for claims about original public meanings in cases of actual historical disagreement, PMO appears to insist that “we know it when we see it.” Yet an “it” that exists only insofar as particular practitioners of PMO see it is not the kind of “original public meaning” that they or anyone else should want to make the object of historical inquiry.

To be clear, just as I recognize that constitutional provisions can have minimal original public meanings, I accept—indeed, I shall emphasize—that courts and judges can reach better- or worse-supported conclusions about constitutional provisions’ original legal meanings, even in disputed cases. Proper ascription of legal meanings depends on a mixture of facts about ordinary language use, legal norms, and moral norms, not the mistaken premise that disputed provisions had uniquely correct, original linguistic meanings that are simultaneously factual, reliably ascertainable, and capable of resolving reasonably disputable issues.⁴⁰ 40.In listing moral norms among the factors relevant to legal reasoning, I assume that insofar as authoritative legal materials otherwise fail to provide an answer to a legally disputed questions, a judge should adopt the legally eligible answer that would be morally best. See, e.g., Joseph Raz, Incorporation by Law, 10 Legal Theory 1 (2004).For a different argument from mine to the shared conclusion that disputed constitutional provisions typically lack uniquely correct and determinate linguistic meanings, see Frederick Mark Gedicks, The ‘Fixation Thesis’ and Other Falsehoods, 72 Fla. L. Rev. 219, 223–24 (2020) (arguing that belief in original public meanings represents an ontological mistake because “[t]he meaning of any text from the past is also shaped by the demands of the interpreter” with the result that “in the present[,] textual meaning is mutually constituted by past and present”).Show More

In developing my argument that constitutional provisions lack uniquely correct, original public meanings in the special, stipulated sense that leading originalists postulate, this Article pursues a two-pronged strategy. One branch of my argument advances analytically-based criticisms of PMO. The second juxtaposes the linguistic assumptions that undergird PMO with the picture of linguistic and ultimately constitutional meaning that emerges from work by historians and especially from a recent book on Reconstruction and the Reconstruction Amendments, entitled The Second Founding: How the Civil War and Reconstruction Remade the Constitution, by the eminent historian Professor Eric Foner.⁴¹ 41.Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xxiv (2019).Show More In describing Foner as an eminent historian, I do not vouch for his conclusions. For purposes of thinking about the plausibility of PMO, however, I accept his account of disagreement and uncertainty among those who helped draft the Fourteenth Amendment and who struggled to identify its communicative content.

In contrast with PMO’s posit that constitutional provisions have single linguistic meanings, Foner insists that the language of the Fourteenth Amendment had multiple, diverse meanings at the time of its promulgation. “[T]he meaning of key concepts embedded in the Reconstruction amendments such as citizenship, liberty, equality, rights, and the proper location of political authority—ideas that are inherently contested—were themselves in flux,”⁴² 42.Id.Show More he writes. More than one Congressman expressed doubt about what key provisions of the Fourteenth Amendment meant. Others confessed to having changed their minds about what rights the Fourteenth Amendment ought to create in the course of debates. If these claims are true, they should inspire skepticism about any version of PMO that posits the existence of original public meanings that extend beyond minimally necessary and noncontroversial meanings and that can be discerned, without a well-specified theory for how to resolve disagreements about central issues, as a matter of historical and linguistic fact.⁴³ 43.Crediting Foner’s specific factual claims, a public meaning originalist might say that even if Foner has shown that the communicative content of the Fourteenth Amendment was vague or underdeterminate in many relevant respects, this finding does not preclude PMO’s claim to be able to identify uniquely correct meanings, going beyond minimally necessary meanings, in some other cases of historical disagreement. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 52) (“[T]he case for Public Meaning Originalism would actually be quite strong if, at the end of the day, it turned out that only [the Privileges or Immunities and Equal Protection Clauses of the Fourteenth Amendment] were so underdeterminate that their original public meaning left almost all of the important contemporary questions in the construction zone.”). I reject that originalist response, for reasons given already. Original public meanings in the originalist sense are the artifacts of a model for the generation of linguistic meanings or communicative content that is too poorly specified to generate uniquely correct meanings in any historically debated or reasonably disputable case.Show More

The Article unfolds as follows. Part I lays out the main tenets of PMO, including its Interpretive Methodology and Conceptual Assumptions. Part I also offers a preliminary contrast between PMO’s conception of linguistic meaning and the alternative reflected in Professor Foner’s recent book, which argues that constitutional provisions can have multiple meanings. According to Foner, “no historian believes that any important document possesses a single intent or meaning.”⁴⁴ 44.Foner, supra note 41, at xxiv.Show More Part II debunks the notion that constitutional provisions have a single, factually identifiable, original linguistic meaning that extends beyond their necessary or historically noncontroversial meanings. Part III charts the implications of my thesis for public meaning originalists, for nonoriginalist as well as originalist judges and Justices, for constitution-writers and students of written constitutionalism, and for theories of statutory interpretation. Part IV furnishes a brief conclusion.

1. * Story Professor of Law, Harvard Law School. I am grateful to Randy Barnett, Tom Colby, Gary Lawson, Liam Murphy, Fred Schauer, Larry Solum, Cass Sunstein, and Jeremy Waldron and to participants in the NYU Colloquium in Legal Political and Social Philosophy and the 2021 Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference for extraordinarily helpful comments on prior drafts. Julianna Astarita, Max Bloom, Emily Massey, and Benjamin Miller-Gootnick provided invaluable research assistance. ↑

2. See, e.g., Full Transcript: Read Judge Amy Coney Barrett’s Remarks, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/2020/09/26/us/politics/full-transcript-amy-coney-barrett.html [https://perma.cc/J48S-S8ZC] (“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too.”); Nomination of the Honorable Amy Coney Barrett to Be an Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 116th Cong. 4 (2020) (opening statement of Amy Coney Barrett) (arguing judges should “interpret[] our Constitution and laws as they are written”); see also Kanter v. Barr, 919 F.3d 437, 454–65 (7th Cir. 2019) (Barrett, J., dissenting) (exemplifying, in the Second Amendment context, Justice Barrett’s emphasis on historical analysis). ↑

3. See, e.g., Neil Gorsuch, A Republic, If You Can Keep It 116–27 (2019) (advancing defense of originalism); Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1381 (2018) (Gorsuch, J., dissenting) (contending that “[t]he Constitution’s original public meaning supplies the key” to its interpretation). ↑

4. See, e.g., Rosenkranz Originalism Conference Features Justice Thomas ’74, Yale Law School (Nov. 4, 2019), https://law.yale.edu/yls-today/news/rosenkranz-originalism-conference-features-justice-thomas-74 [https://perma.cc/3SKV-9LBQ] (quoting Justice Thomas as saying that modern day originalists should “give the words and phrases used by [authors] natural meaning in context” and that doing otherwise “usurps power from the people”); see also Gregory E. Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas?, 4 N.Y.U. J.L. & Liberty 494, 495, 511 (2009) (describing Justice Thomas’ originalism). ↑

5. Matthew Walther, Sam Alito: A Civil Man, American Spectator (Apr. 21, 2014, 12:00 AM), https://spectator.org/sam-alito-a-civil-man [https://perma.cc/XD92-CVGH] (“I think I would consider myself a practical originalist.”); see also Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito, 87 Geo. Wash. L Rev. 507, 512 (2019) (observing that a “theme of Justice Alito’s jurisprudence is originalism, though not in the traditional sense of the word that one might associate with Justice Scalia”). ↑

6. Scott Soames, Originalism and Legitimacy, 18 Geo. J.L. & Pub. Pol’y 241, 246 (2020) [hereinafter Soames, Originalism and Legitimacy]. For a brief history of originalism, see Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory, in The Challenge of Originalism: Theories of Constitutional Interpretation 12, 12 (Grant Huscroft & Bradley W. Miller eds., 2011). ↑

7. See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1251 (2019) (“Most contemporary originalists aim to recover the public meaning of the constitutional text at the time each provision was framed and ratified; this has been the dominant form of originalism since the mid-1980s.”); Jamal Greene, The Case for Original Intent, 80 Geo. Wash. L. Rev. 1683, 1684 (2012) (“Today, most academic originalists and even some living constitutionalists say that constitutional interpretation should proceed, first and foremost, from the original meaning of the text at issue.”); Steven G. Calabresi & Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648, 649 (2016) (asserting that “all modern originalists . . . are original public meaning textualists”). But cf. Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156, 158 (2017) (noting that “[a] number of scholars, this author among them, have argued for shifting focus from original meaning to our original law”).

   Professor Solum distinguishes four varieties of originalism in addition to public meaning originalism: Original Intentions Originalism (“The original meaning of the constitutional text is the meaning that the framers intended to convey.”); Ratifiers’ Understandings Originalism (“The original meaning of the constitutional text is the meaning conveyed to the ratifiers of each provision.”); Original Methods Originalism (“The original meaning of the constitutional text is the meaning produced by application of the original methods of constitutional interpretation and construction to the text.”); and Original Law Originalism (“The law in effect at the time the Constitution was ratified is legally binding unless it was changed by methods authorized by the original law.”). Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2017 B.Y.U. L. Rev. 1621, 1627 [hereinafter Solum, Triangulating Public Meaning]. For an alternative, critical typology, see Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 247–62 (2009). ↑

8. See Antonin Scalia, Address Before the Attorney General’s Conference on Economic Liberties in Washington, D.C. (June 14, 1986), in Original Meaning Jurisprudence: A Sourcebook 101, 106 (U.S. Dep’t of Just. ed., 1987) (arguing that originalists “ought to campaign to change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning”); see also Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L.J. 1113, 1139 (2003) (characterizing Justice Scalia as “original meaning textualism’s patron saint”). ↑

9. See sources cited supra notes 1–4. ↑

10. See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (“In their full context, words mean what they conveyed to reasonable people at the time they were written.”); Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 92 (2004) (“‘[O]riginal [public] meaning’ originalism seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment.”); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001) [hereinafter Barnett, Commerce Clause]; Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 Const. Comment. 47, 48 (2006) (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people . . . but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1440 (2014) (“[T]he true, original public meaning of the language employed . . . [is] the objective meaning the words would have had, in historical, linguistic, and political context, to a reasonable, informed speaker and reader of the English language at the time that they were adopted.”). ↑

11. See, e.g., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 60 (1999) (asserting that the process of ratification gave the constitutional “text the meaning that was publicly understood”); Lawrence B. Solum, Cooley’s Constitutional Limitations and Constitutional Originalism, 18 Geo. J.L. & Pub. Pol’y 49, 57 (2020) [hereinafter Solum, Cooley’s Constitutional Limitations] (“The original meaning of the constitutional text is best understood as the meaning communicated to the public at the time each provision was framed and ratified.”); Lawrence B. Solum, Originalist Theory and Precedent: A Public Meaning Approach, 33 Const. Comment. 451, 453 (2018) [hereinafter Solum, Originalist Theory] (“The public meaning of the constitutional text is . . . the content communicated to the public by the text and the publicly available context of constitutional communication.”); Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1136 (1998) (“Originalism is the idea that the words of the Constitution must be understood as they were understood by the ratifying public at the time of enactment.”). ↑

12. To take a single illustrative example, Professor Lawrence Solum, who frequently defines original public meanings by reference to “the meaning communicated to the public,” see Solum, Cooley’s Constitutional Limitations, supra note 10, at 57, criticizes the efforts to discern original meanings by historians who focus primarily on assertions by particular historical figures and do not attend sufficiently to “the communicative content of the text” by closely examining its “semantics or pragmatics.” Solum, Triangulating Public Meaning, supra note 6, at 1653–54. ↑

13. See, e.g., Scott Soames, Interpreting Legal Texts: What Is, and What Is Not, Special About the Law, in 1 Philosophical Essays: Natural Language: What It Means and How We Use It 403, 403 (Scott Soames ed., 2009) [hereinafter Soames, Interpreting Legal Texts] (arguing that “[p]rogress can . . . be made . . . by seeing [legal and statutory interpretation] as an instance of the more general question of what determines the contents of ordinary linguistic texts”); Lawrence B. Solum, Semantic Originalism 28 (Ill. Pub. L. & Legal Theory Rsch. Paper Series, Research Paper No. 07-24, 2008), available at http://papers. ssrn.com/sol3/papers.cfm?abstract_id=1120244 [https://perma.cc/625M-RML5] (describing the Constitution as a “text” and explaining the central role of semantic theory, framed as “the theory of the meaning of utterances,” in establishing the “linguistic meaning” of constitutional provisions). ↑

14. See Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 275 (2019); cf. Saul Cornell, President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era, 89 Fordham L. Rev. 1761 (2021) (referring to “[t]he ‘standard communication model’ favored by many originalists”). ↑

15. See infra notes 52–53 and accompanying text. ↑

16. See Lawrence B. Solum, Originalist Methodology, 84 U. Chi. L. Rev. 269, 278 (2017) [hereinafter Solum, Originalist Methodology] (“[T]he communicative content of the constitutional text is a fact.”); Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 12 (2015) [hereinafter Solum, Fixation Thesis] (“The communicative content of a text is determined by linguistic facts . . . and by facts about the context in which the text was written. Interpretations are either true or false—although in some cases we may not have sufficient evidence to show that a particular interpretation is true or false.”); Soames, Originalism and Legitimacy, supra note 5, at 248 (asserting that “[t]he contents” of statutes and other linguistic acts by collective bodies “is, in principle, derivable from the relevant, publicly available, linguistic and non-linguistic facts”). ↑

17. See Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame L. Rev. 479, 497–98 (2013) [hereinafter Solum, Communicative Content] (defining public meaning as “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”). ↑

18. For a different argument to a similar conclusion, see Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 714 (2011) (arguing that the most sophisticated versions of “the New Originalism” have responded to criticisms of “the Old Originalism” with adaptations that severely limit their claims to determinacy). ↑

19. This is the preferred, technical vocabulary of the public meaning originalists who draw most explicitly on the conceptual apparatus of the philosophy of language. See infra notes 54–56 and accompanying text. ↑

20. My usage follows that of Professor Mark Richard, who defines interpretive common ground as shared presuppositions. See Mark Richard, Meanings as Species 3 (2019). ↑

21. See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 213–15 (1980); Solum, supra note 12, at 40. ↑

22. See infra Subsection II.A.2.a. ↑

23. See infra notes 167–191 and accompanying text. ↑

24. See infra Subsection III.B.1 (observing disagreement about the meanings of multiple constitutional provisions). ↑

25. See supra note 10 and accompanying text (citing examples of such PMO adherents). ↑

26. See, e.g., Richard A. Primus, When Should Original Meanings Matter?, 107 Mich. L. Rev. 165, 214 (2008) (“[W]hen [originalist material] speaks in many voices, there is no way to settle the question of whether a view expressed in the Pennsylvania ratifying convention is more or less authoritative than a view expressed in the newspapers of Massachusetts.”). ↑

27. See, e.g., Lawson & Seidman, supra note 9, at 48 (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people—whether drafters, ratifiers, or commentators, however distinguished and significant within the drafting and ratification process they may have been—but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); cf. Solum, Triangulating Public Meaning, supra note 6, at 1637 (“Original public meaning should be distinguished from what have been called ‘original expected application[s].’”). ↑

28. U.S. Const. art. I, § 3, cl. 1. ↑

29.  This usage echoes Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 284–85 (2009) (positing that legislators should be assumed to vote for legislation with the “minimal intention” to make law that will be “understood” in accordance with the norms of “their legal culture”). ↑

30. Ryan C. Williams, The Ninth Amendment as a Rule of Construction, 111 Colum. L. Rev. 498, 544 (2011), proposes a test along these lines. For discussion of the details and implications of his proposal, see infra notes 207–08 and accompanying text. ↑

31. See, e.g., Jack M. Balkin, Living Originalism 21 (2011) (defending “framework originalism”) [hereinafter Balkin, Living Originalism]; Jack M. Balkin, The Construction of Original Public Meaning, 31 Const. Comment. 71, 80 (2016) [hereinafter Balkin, Construction]. ↑

32. See infra Section I.A. ↑

33. U.S. Const. amend. II. See District of Columbia v. Heller, 554 U.S. 570, 576 (2008) (grounding the conclusion that the Second Amendment protects a personal right to possess arms for self-defense in “the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’” (quoting United States v. Sprague, 282 U.S. 716, 731 (1931))); id. at 652–79 (Stevens, J., dissenting) (analyzing Second Amendment’s historical context and concluding that any rights that it created were linked to service in a well-regulated militia); see also Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 Harv. L. Rev. 246, 246 (2008) (“Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning.”); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 924 (2009) (contending that Heller offered “the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court”). ↑

34. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 385–93 (2010) (Scalia, J., concurring) (emphasizing majority opinion’s consistency with original public meaning of the First Amendment); id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (disputing this analysis); see also Leo E. Strine, Jr. & Nicholas Walter, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, 91 Notre Dame L. Rev. 877, 878 (2016) (providing an overview of the historical dispute between the two opinions). ↑

35. See, e.g., Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”); id. at 726 (Thomas, J., dissenting) (charging the Court with “los[ing] its way” in “deviating from the original meaning of the [Due Process] Clauses”); cf. Calabresi & Begley, supra note 6, at 652–54 (2016) (challenging Justice Thomas’s approach and offering originalist defense of Obergefell). ↑

36. On the distinction between the metaphysics of meaning and the epistemological issues involved in its ascertainment, see Michael Devitt, Three Methodological Flaws of Linguistic Pragmatism, in What Is Said and What Is Not: The Semantics/Pragmatics Interface 285, 285–86 (Carlo Penco & Filippo Domaneschi eds., 2013). ↑

37. Cf. Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529, 601–02 (2008) (noting the pointlessness of seeking to establish “the standard of proof necessary to establish a ‘fact’ that never existed”). ↑

38. A comparison with other contexts in which the law employs “reasonable person” standards confirms this conclusion. The most characteristic function of “reasonable person” standards is to embody reasonableness in a particular domain of thought, action, or disposition. See Christopher Jackson, Reasonable Persons, Reasonable Circumstances, 50 San Diego L. Rev. 651, 655 (2013) (quoting Peter Westen, Individualizing the Reasonable Person in Criminal Law, 2 Crim. L. & Phil. 137, 139 (2008)) (asserting that “[a] reasonable person is reasonableness rendered incarnate”). In seeking to resolve disputed questions, the reasonable person pursues the methods of inquiry appropriate to achievement of true beliefs about the matter in question. See John Gardner, The Mysterious Case of the Reasonable Person, 51 U. Toronto L.J. 273, 273 (2001) [hereinafter Gardner, The Mysterious Case] (defining the “reasonable person” as a “justified” person whose actions satisfy the standards of justification appropriate for actions of the relevant kind and whose beliefs are similarly justified); John Gardner, Reasonable Person Standard, in The International Encyclopedia of Ethics (Hugh LaFollette ed., 2019) (“When the law’s question is what the reasonable person would [believe], the answer is that she would have reasonable [beliefs].”). The deep, underlying assumption is that true beliefs are possible. ↑

39. Cf. Balkin, Construction, supra note 30, at 78 (terming the original public meaning “a constructed entity”); Jack M. Balkin, Lawyers and Historians Argue About the Constitution, 35 Const. Comment. 345, 369 (2020) (“‘Original public meaning’ is a theoretical construction, a mediated account of the past that serves the purposes of law and legal theory.”). ↑

40. See, e.g., Richard S. Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. Rev. 703, 720 (2009) (“Public meaning is, quite explicitly, an artificial construct. The qualifying criteria . . . depend on assumptions about how some chosen hypothetical speaker of the language would apprehend the text at issue. Even in theory there is no ‘right answer.’”). According to Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. (forthcoming Dec. 2021) (manuscript at 52) (on file with author) [hereinafter Solum, Public Meaning Thesis], “When there is controversy over the public meaning, we aim for the interpretation that best explains all the available evidence.” Although this formulation presupposes the existence of a theory that identifies some “evidence” as relevant and supports inferences about the relationship of evidence to conclusions, Professor Solum never articulates the theory on which he relies. ↑

41. In listing moral norms among the factors relevant to legal reasoning, I assume that insofar as authoritative legal materials otherwise fail to provide an answer to a legally disputed questions, a judge should adopt the legally eligible answer that would be morally best. See, e.g., Joseph Raz, Incorporation by Law, 10 Legal Theory 1 (2004).

    For a different argument from mine to the shared conclusion that disputed constitutional provisions typically lack uniquely correct and determinate linguistic meanings, see Frederick Mark Gedicks, The ‘Fixation Thesis’ and Other Falsehoods, 72 Fla. L. Rev. 219, 223–24 (2020) (arguing that belief in original public meanings represents an ontological mistake because “[t]he meaning of any text from the past is also shaped by the demands of the interpreter” with the result that “in the present[,] textual meaning is mutually constituted by past and present”). ↑

42. Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xxiv (2019). ↑

43. Id. ↑

44. Crediting Foner’s specific factual claims, a public meaning originalist might say that even if Foner has shown that the communicative content of the Fourteenth Amendment was vague or underdeterminate in many relevant respects, this finding does not preclude PMO’s claim to be able to identify uniquely correct meanings, going beyond minimally necessary meanings, in some other cases of historical disagreement. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 52) (“[T]he case for Public Meaning Originalism would actually be quite strong if, at the end of the day, it turned out that only [the Privileges or Immunities and Equal Protection Clauses of the Fourteenth Amendment] were so underdeterminate that their original public meaning left almost all of the important contemporary questions in the construction zone.”). I reject that originalist response, for reasons given already. Original public meanings in the originalist sense are the artifacts of a model for the generation of linguistic meanings or communicative content that is too poorly specified to generate uniquely correct meanings in any historically debated or reasonably disputable case. ↑

45. Foner, supra note 41, at xxiv. ↑

46. See, e.g., Solum, supra note 12, at 18; Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 528 (2013) [hereinafter Solum, Originalism and Constitutional Construction]; Greene, supra note 6, at 1687–88. ↑

47. See Scalia, supra note 7 (arguing that originalists “ought to campaign to change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning”); see also Kesavan & Paulsen, supra note 7, at 1139 (characterizing Justice Scalia as “original meaning textualism’s patron saint”). ↑

48. See, e.g., Randy E. Barnett, Scalia’s Infidelity: A Critique of “Faint-Hearted” Originalism, 75 U. Cin. L. Rev. 7, 13–15 (2006); cf. Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921, 1942 (2017) (concluding that, “[t]o the extent [Justice Scalia] was occasionally faint hearted . . . who could blame him for being human?”). ↑

49. See Balkin, Living Originalism, supra note 30, at 31; Balkin, Construction, supra note 30, at 80 (advancing a “thin” conception of original public meaning that consists of “the original semantic meaning of the words, . . . taking into account any generally recognized terms of art, and any background context necessary to understand the text,” but not the “original expected application” of the text). ↑

50. See Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291, 294 (2007) (noting the availability of an originalist argument in support of abortion rights). ↑

51. See Balkin, Construction, supra note 30, at 86 (“I view constitutions as frameworks—they are a basic set of rules, standards and principles that are designed to create institutions and channel political action in order to make politics possible. Constitutions are designed to put politics in motion and cause people to solve their problems through politics as opposed to through violence and civil war.”). ↑

52. See Solum, Communicative Content, supra note 16, at 485 (“Legal communications are ‘utterances’ in the broad sense of that word, which encompasses both sayings and writings.”); Scott Soames, Deferentialism: A Post-Originalist Theory of Legal Interpretation, 82 Fordham L. Rev. 597, 598 (2013) [hereinafter Soames, Deferentialism] (“applying [the] lesson” learned from successful communication in more familiar speaker-to-listener contexts “to legal interpretation”); Soames, Originalism and Legitimacy, supra note 5, at 247 (explaining originalism’s extension of “a well-understood model of linguistic communication among individuals” to “lawmaking”). ↑

53. Scott Soames, Toward a Theory of Legal Interpretation, 6 N.Y.U. J.L. & Liberty 231, 232 (2011). ↑

54. Solum wrestles at length with the differences between conversational and constitutional interpretation in an unpublished paper, The Public Meaning Thesis, supra note 39 (manuscript at 12 & n. 45), but emphatically endorses what he calls the “Continuity Thesis,” which holds that constitutional interpretation is sufficiently continuous with conversational interpretation so that concepts developed to elucidate successful conversational interpretation, especially those traceable to Paul Grice, Studies in the Way of Words 3–143 (1989), should be adapted rather than abandoned. According to Solum, the principal necessary adjustment of the model of conversational interpretation involves the absence of a unitary speaker in the case of constitutional provisions. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 17) In a paper published in 2013, Solum maintained that provisions’ meanings might be based on “the semantic meaning of the text” in conjunction with “the publicly available context of constitutional communication.” Solum, Communicative Content, supra note 16, at 500. In the as-yet unpublished The Public Meaning Thesis, supra note 39 (manuscript at 36), he postulates that different speakers in the complex chain that begins with a drafter and includes ultimate ratifiers have meshing second-order intentions to adopt either the communicative intentions of the initial drafter or to communicate the public meaning of the text as it would appear to members of the provision’s intended public audience. For critical discussion of this proposal, see infra notes 147–49 and accompanying text. ↑

55. See Solum, Communicative Content, supra note 16, at 484; Soames, Originalism and Legitimacy, supra note 5, at 264 (defining “assertive content”); Soames, Deferentialism, supra note 51, at 598–600 (differentiating linguistic meaning from assertive content). ↑

56. Soames, Deferentialism, supra note 51, at 598. ↑

57. Solum, Originalist Methodology, supra note 15, at 277; see also Solum, Communicative Content, supra note 16, at 488 (“The full communicative content of a legal writing is a product of the semantic content (the meaning of the words and phrases as combined by the rules of syntax and grammar) and the additional content provided by the available context of legal utterance.”). In order to communicate successfully, an author must therefore anticipate what a reasonable reader will take her communicative intent to be in using the words that she uses. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 14). ↑

58. See, e.g., Solum, Communicative Content, supra note 16, at 488 (“In the philosophy of language and theoretical linguistics, the phrase ‘pragmatic enrichment’ is sometimes used to refer to the contribution that context makes to meaning.”); Andrei Marmor & Scott Soames, Introduction, in Philosophical Foundations of Language in the Law 1, 8 (Andrei Marmor & Scott Soames eds., 2011) (noting that the “assertive content” of utterances “is determined by a variety of factors, including the semantic content of the sentence uttered, the communicative intentions of the speaker, the shared presuppositions of the speaker-hearers, and obvious features of the context of utterance”). ↑

59. Solum, Communicative Content, supra note 16, at 488. ↑

60. Lawrence B. Solum, Intellectual History as Constitutional Theory, 101 Va. L. Rev. 1111, 1126 (2015) [hereinafter Solum, Intellectual History]; Solum, Originalist Methodology, supra note 15, at 285. ↑

61. See Solum, Communicative Content, supra note 16, at 488 (“In the philosophy of language and theoretical linguistics, the phrase ‘pragmatic enrichment’ is sometimes used to refer to the contribution that context makes to meaning.”). ↑

62. See Soames, Interpreting Legal Texts, supra note 12, at 403–04; Solum, Communicative Content, supra note 16, at 488. ↑

63. See infra notes 167–74 and accompanying text. ↑

64. Solum, Cooley’s Constitutional Limitations, supra note 10, at 57. ↑

65. Solum, Communicative Content, supra note 16, at 497–98 (defining public meaning as “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”). ↑

66. In his forthcoming article The Public Meaning Thesis, supra note 39 (manuscript at 50 n.160), Solum writes:

    One idea is that pragmatic enrichments should be assessed from the perspective of “a reasonable member of the ratifying public at the time of enactment.” This idea is consistent with Public Meaning Originalism, so long as we understand that the idea of “a reasonable member of the public” is a heuristic and not an account of the causal mechanism by which communicative content is conveyed. ↑

67. See, e.g., Chiafalo v. Washington, 140 S. Ct. 2136, 2335 (2020) (Thomas, J., concurring) (“[T]he Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning.”); Solum, Triangulating Public Meaning, supra note 6, at 1637 (“The meaning of a text is one thing; expectations about how the text will or should be applied to particular cases or issues is another.”); Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 BYU L. Rev. 1393, 1398 (arguing that “it is the semantic original public meaning of the enacted texts,” rather than expected applications that determine original meaning); Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 Tex. L. Rev. 1, 7 (2011) (distinguishing meaning from expected applications by noting that “sometimes legislators misapply or misunderstand their own rules”); Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611, 622 (1999) (noting that PMO is not concerned with “how the relevant generation of ratifiers expected or intended their textual handiwork would be applied to specific cases . . . except as circumstantial evidence of what the more technical words and phrases in the text might have meant to a reasonable listener”).

    In contrast with public meaning originalists, Professor Richard Kay has developed an approach that would fix original constitutional meanings based on overlapping intentions of majorities voting to ratify the Constitution in the various state ratifying conventions, but he identifies his approach as a version of original-intent-based, rather than OPM, originalism. See Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 247–51 (1988). ↑

68. See, e.g., Solum, Triangulating Public Meaning, supra note 6, at 1637. ↑

69. This example is adapted from Mark D. Greenberg & Harry Litman, The Meaning of Original Meaning, 86 Geo. L.J. 569, 585 (1998). ↑

70. In Triangulating Public Meaning, supra note 6, at 1665, Solum gives a complex example involving an “application belief” that the Fourteenth Amendment would not protect women’s equal rights to practice law based on “a false belief that women have intellectual capacities that are similar to those of children and, hence, that women are incapable of practicing law.” For other rejections of the equation of original public meanings with original expectations or application beliefs, see supra note 66 and accompanying text. ↑

71. See, e.g., Solum, Triangulating Public Meaning, supra note 6, at 1638. ↑

72. Solum, Originalist Methodology, supra note 15, at 278. ↑

73. Solum, Fixation Thesis, supra note 15, at 12. When originalists assert positions such as these, I do not take them to claim that no judgment is necessary, but that no normative judgment is either necessary or appropriate. For example, to determine whether the Constitution permits a President to pardon him- or herself, a judge might have to use judgment in ascertaining what a reasonable person would take the assertive content of the relevant language of Article II to be in light of its legal background and relationship to other constitutional provisions. Nonetheless, the answer that emerges from application of the model of conversational interpretation (as minimally modified) should not depend on a normative judgment about whether allowing presidents to pardon themselves would be desirable. ↑

74. See, e.g., Solum, Originalism and Constitutional Construction, supra note 45, at 458; Randy E. Barnett, Interpretation and Construction, 34 Harv. J.L. & Pub. Pol’y 65, 67 (2011) [hereinafter Barnett, Interpretation and Construction]. ↑

75. Soames, Originalism and Legitimacy, supra note 5, at 249. ↑

76. Solum, Originalism and Constitutional Construction, supra note 45, at 536; see also Solum, Public Meaning Thesis, supra note 39 (manuscript at 4–5) (noting the need for constitutional “construction” in cases involving linguistically underdeterminate provisions). ↑

77. See, e.g., Barnett, Interpretation and Construction, supra note 73, at 66, 69–70; see also, e.g., Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 5–6 (2018) (proposing one originalist model of judicial construction). ↑

78. Solum, Originalism and Constitutional Construction, supra note 45, at 472–73; Soames, supra note 52, at 243–44. ↑

79. Solum, Originalism and Constitutional Construction, supra note 45, at 457. ↑

80. Id. ↑

81. Id. at 458. ↑

82. See, e.g., Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 953, 956 (1995) (finding that original meaning of the Fourteenth Amendment barred school segregation); Robert G. Natelson, Paper Money and the Original Understanding of the Coinage Clause, 31 Harv. J.L. & Pub. Pol’y 1017, 1021–22 (2008) (maintaining, contrary to the contentions of others, that originalism authorizes a reading of the “coinage” clause that permits paper money). ↑

83. See Maximilian Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. (forthcoming 2022) (manuscript at 3–4) (on file with author). ↑

84. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 138–39 (1873). ↑

85. See Lawrence B. Solum, Surprising Originalism: The Regula Lecture, 9 ConLawNOW 235, 253–55 (2018). ↑

86. See Soames, Originalism and Legitimacy, supra note 5, at 275–85. ↑

87. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 649 (2012) (Scalia, J., dissenting) (examining “the original meaning of ‘regulate’ at the time of the Constitution’s ratification”); see also id. at 599–601, 610 (Ginsburg, J., concurring) (asserting that the Framers understood the commerce power, and the term “regulate,” more broadly). ↑

88. Compare, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 385–93 (2010) (Scalia, J., concurring), with id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (advancing a contrasting view of the original meaning of the Free Speech Clause). See also supra note 33 and accompanying text (noting additional contributors to the debate). ↑

89. See supra note 32. ↑

90. See supra note 34. ↑

91. See, e.g., Scalia & Garner, supra note 9, at 15 (“[T]his supposed distinction between interpretation and construction has never reflected the courts’ actual usage.” (emphasis omitted)). ↑

92. Antonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 129, 140 (Amy Gutmann ed., 1997). ↑

93. Solum, Originalism and Constitutional Construction, supra note 45, at 460. ↑

94. See id. at 460–61. Solum, in a recent article, specifies the Constraint Principle as requiring “that the norms of constitutional law should be consistent with and fairly derivable from the public meaning of the constitutional text.” Lawrence B. Solum, Themes from Fallon on Constitutional Theory, 18 Geo. J.L. & Pub. Pol’y 287, 292 (2020) [hereinafter Solum, Themes from Fallon]. Originalists including Randy Barnett, Gary Lawson, and Michael Stokes Paulsen take similar if not even more uncompromising positions. See, e.g., Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 Const. Comment. 257, 269 (2005); Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol’y 23, 24 (1994); Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Const. Comment. 289, 291 (2005). ↑

95. Foner, supra note 41, at 11. ↑

96. Id. at 57. ↑

97. Id. at 78. ↑

98. Id. ↑

99. Id. at 6–7. ↑

100. Id. at 73. ↑

101. Id. at 62–65 ↑

102. Id. at 63. ↑

103. Id. at 63–65. ↑

104. Id. at 63–66. ↑

105. Id. at 66. ↑

106. Id. at 19. ↑

107. Id. at 89. ↑

108. See William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 51–53 (1988) (noting the possibility that Joint Committee on Reconstruction may have deliberately adopted “a phrasing that was sufficiently broad so that those who favored federal protection of political rights could construe it to provide such protection, and sufficiently innocuous so that those who opposed giving such power to the federal government could be reassured that the amendment did no such thing”); Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 61 (1955) (suggesting that “the Moderates and the Radicals reached a compromise permitting them to go to the country with language which they could, where necessary, defend against damaging alarms raised by the opposition, but which at the same time was sufficiently elastic to permit reasonable future advances”). ↑

109. Foner, supra note 41, at 91. ↑

110. See Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575, 588 (2011) (“It is one thing, after all, to suppose that words fraught with political content retain a relatively fixed meaning in quiet times, but it is quite another to apply that assumption to a period like the late 1780s or the Revolutionary era more generally.”). ↑

111. Id. at 593. ↑

112. See infra Subsection III.B.1. ↑

113. See Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention 240 (2015); see also Saul Cornell, Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard, 29 Const. Comment. 383, 405 (2014) (“Given the contentious nature of Founding era legal culture it seems unreasonable to assume that one can identify a single set of assumptions and practices from which to construct an ideal reasonable reader who could serve as model for how to understand the Constitution in 1788.”). ↑

114. See Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era 4–9 (2018). ↑

115. Id. at 5. ↑

116. See id. at 9–10. ↑

117. See, e.g., Kesavan & Paulsen, supra note 7, at 1115. ↑

118. See also Colby, supra note 36, at 535 (observing that “as a natural consequence of the constitution-making process, a constitutional provision addressing a deeply controversial subject can only hope to be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single meaning, it appeals to disparate factions with divergent understandings of its terms”). ↑

119. Solum, Triangulating Public Meaning, supra note 6, at 1624–25. ↑

120. Solum refers to the drafting history of the Fourteenth Amendment as potentially relevant to its public meaning in his article on triangulation. Id. at 1656–57 & n.74. But Solum has also dismissed the work of another estimable historian, Jack Rakove, as largely irrelevant to the project of discerning original public meanings:

     Work by the eminent constitutional historian Jack Rakove reflects immersion in the framing period, but Rakove’s Original Meanings does not focus on the communicative content of the text—indeed, the text is rarely quoted and never (or almost never) parsed for its communicative content. Like most intellectual historians, Rakove’s primary concern is with motivations, ideology, and ideas, and not with the semantics or pragmatics of the Constitution.

     Id. at 1653–54. If a similar response were directed toward Foner, it might have a patina of plausibility, but no more. Foner specifically writes about the language of the Fourteenth Amendment, the specific concerns and motivations of the language’s authors, and about public debates in Congress about which an informed person might know. See supra notes 94–104 and accompanying text. ↑

121. See Maggs, supra note 3, at 495, 511. ↑

122. Id. See also Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 300–02 (2009) (observing that Justice Thomas “seems not to contemplate any distinction among original intent, original understanding, and original textual meaning”). ↑

123. See supra Subsection I.A.1. ↑

124. U.S. Const. amend. XIV, § 1. ↑

125. Compare Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 26 (2004) (“[T]he original understanding of the Fourteenth Amendment plainly permitted school segregation.”), with McConnell, supra note 81, at 956–57 (maintaining that the original public meaning of the Fourteenth Amendment forbade school segregation), and Soames, Originalism and Legitimacy, supra note 5, at 275–85 (same). ↑

126. See Foner, supra note 41, at 137–39 (noting debates about women’s rights under the Fourteenth Amendment). ↑

127. See Brown v. Board of Education, 347 U.S. 483, 495 (1954) (“[S]egregation is a denial of the equal protection of the laws.”); United States v. Virginia, 518 U.S. 515, 530–46 (1996) (holding that a state’s exclusion of women from a unique educational opportunity violated the Equal Protection Clause); Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 421–22 (1960) (characterizing Brown as turning on whether “a massive intentional disadvantaging” of a group on the basis is race was compatible with the commands of the Equal Protection Clause); Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427, 432 (1997) (maintaining that “nearly no one today is a true equal protection originalist, because true equal protection originalism would repudiate Brown v. Board of Education”). ↑

128. Foner, supra note 41, at xxiv. ↑

129. See Frank Jackson, From Metaphysics to Ethics: A Defense of Conceptual Analysis 33 (1998) (arguing “concept” refers to “the possible situations covered by the words we use to ask our questions”); see also David Plunkett, Which Concepts Should We Use?: Metalinguistic Negotiations and the Methodology of Philosophy, 58 Inquiry 828, 846 (2015) (“[I]ndividual concepts are roughly the equivalent in mental representation to what individual words are in linguistic representation.” (emphasis omitted)). ↑

130. For the thesis that there are many such disputes that are best classified as involving “metalinguistic” disputes or negotiations about how we ought to use words, rather than involving empirical claims about semantic meanings, see Plunkett, supra note 128, at 837–38; David Plunkett & Tim Sundell, Disagreement and the Semantics of Normative and Evaluative Terms, 13 Philosophers’ Imprint 1, 2–3 (2013). See also Richard, supra note 19, at 3 (arguing that there are multiple possible conceptions of meaning, the most useful of which for many purposes will equate meaning with “interpretive common ground” among competent speakers of a language, and that meaning in this sense is “species-like” and evolving). ↑

131. See supra notes 109–15 and accompanying text. ↑

132. See W.B. Gallie, Essentially Contested Concepts, 56 Proceedings of the Aristotelian Society 167, 169 (1956) (defining “essentially contested concepts” as “concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users”). ↑

133. In the case of normative and evaluative terms, I assume that disagreement will normally involve the terms’ semantics, not pragmatics. See Plunkett & Sundell, supra note 129, at 8. ↑

134. See John Rawls, A Theory of Justice 5 (1971). ↑

135. See Ronald Dworkin, Taking Rights Seriously 133–36 (1977). ↑

136. See Rawls, supra note 133. ↑

137. See, e.g., Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 223–26, 320–21 (2021) (arguing concluding that the original meaning of the Equal Protection Clause involved a guarantee of nondiscriminatory enforcement of the laws as written and governmental protection against private lawbreaking and that guarantees against unequal distribution of rights through the content of the written laws came from the Privileges or Immunities Clause). ↑

138. See id. at 205–26 (discussing and rejecting five rival theories about the meaning of the Privileges or Immunities Clause). ↑

139. U.S. Const. amend. XIV, § 1. ↑

140. Soames, Deferentialism, supra note 51, at 597–98. ↑

141. Solum, Intellectual History, supra note 59, at 1126; Solum, Originalist Methodology, supra note 15, at 285. ↑

142. Soames, Deferentialism, supra note 51, at 598. ↑

143. Foner, supra note 41, at 68–71, 86–87. ↑

144. Id. at 70. ↑

145. Id. at 88, 91. ↑

146. There are serious questions about whether the ratification of the Fourteenth Amendment complied with the requirements of Article V of the Constitution. See, e.g., Thomas B. Colby, Originalism and the Ratification of the Fourteenth Amendment, 107 Nw. U. L. Rev. 1627, 1629 (2013). It was drafted by a Congress from which representatives of the Southern states were excluded, and those states, which were under military rule, were required to ratify it as a condition of their regaining congressional representation. For a defense of the constitutional lawfulness of the drafting and ratification processes, see John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L. Rev. 375, 378 (2001). ↑

147. The problem of combining or aggregating the intentions of multiple authors or speakers was initially raised in Brest, supra note 20, at 213–14. For a more recent, insightful discussion of “the summing problem,” see, for example, Gregory Bassham & Ian Oakley, New Textualism: The Potholes Ahead, 28 Ratio Juris 127, 138–41 (2015). ↑

148. Solum, Themes from Fallon, supra note 93, at 305–06; see also Solum, Communicative Content, supra note 16, at 500 (“Given that the framers and ratifiers believed that readers engaged in American constitutional practice would know the public context and that they would also know that the framers and ratifiers would believe that they would have such knowledge, the public context satisfies the conditions for common knowledge and can successfully determine clause meaning.”). ↑

149. The textualist/originalist Dean John Manning adopts a similar strategy. See, e.g., John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397, 2405–12 (2017). ↑

150. See generally Plunkett & Sundell, supra note 129, at 16 (“[I]t should be uncontroversial that at least one crucial type of data for figuring out what a speaker means by a term T are facts about the speaker’s usage of T—patterns of usage that reflect her disposition to apply that term one way or another, more generally.”). ↑

151. See supra note 106 and accompanying text. ↑

152. Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. (forthcoming 2022), argues that the prime ambition of originalism is to provide a “standard” for constitutional correctness and that it should not be faulted for failing to furnish a detailed “decision procedure” for finding the correct answer in individual constitutional cases. Sachs, however, writes in defense of a version of originalism that equates original meanings with original legal meanings, not original public meanings. See id. (manuscript at 17, 20). I shall address versions of originalism that are concerned with original legal meanings below. My argument here is that PMO fails to furnish even a “standard” in Sachs’s sense insofar as it posits the existence of, but gives no account of what constitutes, “original public meanings” that extend beyond the “minimal” meanings on which virtually all competent language users would converge. ↑

153. See, e.g., Scalia & Garner, supra note 9, at 15–16; Antonin Scalia, Originalism: The Lesser Evil, 57 Cin. L. Rev. 842, 862 (1989). ↑

154. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636–37 (1987) (Scalia, J., dissenting). ↑

155. Scalia, supra note 91, at 17 (“We look for a sort of ‘objectified’ intent—the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.”); see John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 423 (2005) [hereinafter Manning, Textualism and Legislative Intent] (“[T]extualists have sought to devise a constructive intent that satisfies the minimum conditions for meaningfully tracing statutory meaning to the legislative process.”); Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 353–57 (2005). ↑

156. See Seana Valentine Shiffrin, Speech, Death, and Double Effect, 78 N.Y.U. L. Rev. 1135, 1155 (2003) (employing an “objective notion of intention as it is made manifest through the performance of actions of a certain type, actions that, because of what they involve, are typically motivated by a certain rationale and are reasonably interpreted as being so motivated”); see also Kay, supra note 39, at 708 (“Mainly, we know someone’s intended meaning by examining the typical meaning attached to the words they used.”). ↑

157. U.S. Const. amend. I (emphasis added). ↑

158. See Rakove, supra note 109, at 584; Kay, supra note 39, at 720. ↑

159. Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013). ↑

160. Id. at 327 (Thomas, J., concurring) (citation omitted). ↑

161. See, e.g., supra note 146 and accompanying text. ↑

162. Soames, Deferentialism, supra note 51, at 597–98; see also Soames, supra note 52, at 241 (“Since what language users intend to say, assert, or stipulate is a crucial factor, along with the linguistic meanings of the words they use, in constituting what they do say, assert, or stipulate, the intentions of lawmakers are directly relevant to the contents of the laws they enact.”). ↑

163. Soames, Originalism and Legitimacy, supra note 5, at 248. ↑

164. Leading works in developing accounts of group agency and group intention include Michael E. Bratman, Faces of Intention (1999) and Christian List & Philip Pettit, Group Agency (2011). ↑

165. Ryan D. Doerfler, Who Cares How Congress Really Works?, 66 Duke L.J. 979, 1009 (2017). ↑

166. See supra Subsection I.B.1. ↑

167. See supra note 147 and accompanying text. ↑

168. This discussion draws on Foner’s claims as introduced in supra Subsection I.B.1. ↑

169. See Gardner, The Mysterious Case, supra note 37, at 299 (noting that “the resort to a reasonableness standard is” often a way “to reopen a bit of space for ordinary moral reasoning in a rule that would otherwise be apt to level it away”); see also Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. Rev. 323, 326–28 (2012) (arguing that it is impossible to construct an analytically rigorous descriptive account of the reasonable person); Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2150 (2015) (“[W]hat counts as a reasonable person is itself a question with significant normative content.”). ↑

170. Cf. Ronald Dworkin, Law’s Empire 51–53 (1986) (advancing a theory of “constructive interpretation” that depends on mixed criteria of fit and normative attractiveness); Larry A. DiMatteo, The Counterpoise of Contracts: The Reasonable Person Standard and the Subjectivity of Judgment, 48 S.C. L. Rev. 293, 336, 350 (1997) (observing that “[t]he reasonable person” of contract law, who “must decide if the parties had an intent to create a contract and to give meaning to that intent,” “can be seen as a synthesis of legal and community values”). ↑

171. See supra notes 71–72 and accompanying text. ↑

172. Cf. Lawson & Seidman, supra note 9, at 73 (“This person is highly intelligent and educated and capable of making and recognizing subtle connections and inferences. This person is committed to the enterprise of reason, which can provide a common framework for discussion and argumentation. This person is familiar with the peculiar language and conceptual structure of the law.”); Calabresi & Rickert, supra note 66, at 8 n.33 (“The need for courts to construct an objective original public meaning of enacted texts resembles the need for courts in tort cases to ask what a reasonable person might have done in a given situation.”). ↑

173. Solum, Triangulating Public Meaning, supra note 6, at 1667. ↑

174. Id. at 1668. ↑

175. See, e.g., Bassham & Oakley, supra note 146, at 141 (“[W]hen we are asking what proposition an ‘informed, reasonable reader’ would have understood a certain string of words to express, no clear answer may emerge. Equally informed and equally reasonable readers may have understood the words very differently.”). ↑

176. See Solum, Triangulating Public Meaning, supra note 6, at 1656. ↑

177. See Solum, Communicative Content, supra note 16, at 497–98 (equating public meaning with “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”). ↑

178. Solum, Triangulating Public Meaning, supra note 6, at 1678. ↑

179. See id. at 1639–40. ↑

180. Id. at 1640. ↑

181. Solum also acknowledges that “the actual text of the U.S. Constitution contains general, abstract, and vague provisions that require constitutional construction for their application to concrete constitutional cases.” Solum, Originalism and Constitutional Construction, supra note 45, at 458. ↑

182. See, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 192–208 (2004) (criticizing the Slaughter-House Cases for betraying the original meaning of the Fourteenth Amendment). ↑

183. Solum, Originalism and Constitutional Construction, supra note 45, at 530 (footnote omitted). ↑

184. 83 U.S. (16 Wall.) 130, 139 (1873). ↑

185. See Foner, supra note 41, at 137; see also Solum, Triangulating Public Meaning, supra note 6, at 1665–66 (rejecting “application belief” that the Fourteenth Amendment would not protect women’s equal rights to practice law predicated on “a false belief that women have intellectual capacities that are similar to those of children and, hence, that women are incapable of practicing law”). ↑

186. Solum, Triangulating Public Meaning, supra note 6, at 1666. ↑

187. Chief Justice Chase, who dissented in Bradwell, may have shared it. See Foner, supra note 41, at 137. ↑

188. U.S. Const. amend. XIV, § 2. ↑

189. See Foner, supra note 41, at 80–83, 136–39. ↑

190. Cf. Balkin, Construction, supra note 30, at 92 (“[I]n any age or era—as in our own—reasonable people often differ about many things, especially where politics is involved.”). ↑

191. Soames, Originalism and Legitimacy, supra note 5, at 262. ↑

192. U.S. Const. art. I, § 3. ↑

193. See supra note 159 and accompanying text. ↑

194. See, e.g., Klarman, supra note 124, at 25–26, 146. ↑

195. Solum, Triangulating Public Meaning, supra note 6, at 1656; see also Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 557 (2003) (“[M]odern originalist scholarship often uses the actual understandings expressed by individual framers or ratifiers as evidence of the ‘original meaning.’”); Gregory E. Maggs, A Guide and Index for Finding Evidence of the Original Meaning of the U.S. Constitution in Early State Constitutions and Declarations of Rights, 98 N.C. L. Rev. 779, 779 (2020) (“This Article provides a concise guide to this practice of finding evidence of the original meaning in these early state constitutions and declarations of rights.”). ↑

196. Gary Lawson, Legal Indeterminacy: Its Cause and Cure, 19 Harv. J.L. & Pub. Pol’y 411, 418 (1995). ↑

197. Id. at 421. ↑

198. For a discussion, see supra Subsection I.A.2. ↑

199. See supra Introduction. ↑

200. U.S. Const. amend. IV, § 1. ↑

201. In a discussion of my criticism of PMO in The Public Meaning Thesis, supra note 39, Professor Solum labors at length to refute the proposition that “successful pragmatic enrichment and contextual disambiguation are impossible (or very rare)” in the constitutional context because “the public lacked needed information about the drafters of individual constitutional provisions.” Id. (manuscript at 45). Although I agree with much of his discussion of this point, I have not argued that successful pragmatic enrichment is impossible or necessarily even “very rare” in the case of the Constitution, only that proponents of PMO have failed to establish how claims that determinate constitutional meanings exist as matters of linguistic fact could extend beyond minimally necessary and noncontroversial meanings and non-meanings. In The Public Meaning Thesis, the central examples on which Professor Solum relies to show that pragmatic enrichment can occur even when listeners have only minimal biographical information about a speaker or drafter involve inferences by imagined audiences that he expects all of his readers to concur in. Such examples elide the difficulty of specifying truth conditions for disputed claims about constitutional provisions’ pragmatically enriched meanings.

     With respect to the contextually enriched meanings of disputed provisions, Solum’s fullest statement in Public Meaning Originalism is as follows:

     As a matter of interpretation, the actual communicative content of the constitutional text is what it is—as a matter of fact. Some contextual enrichments are publicly accessible even though they may not have been “obvious” in the sense that recognizing them might require thought and reflection. Other contextual enrichments may exist, even though they were controversial—because controversy can be generated by motivated reasoning or bad faith argumentation driven by ideology or interest. Finally, many pragmatic enrichments are not based on the particular language of the specific constitutional provision, but instead arise the interaction between the purpose of the provision and background assumptions or between one provision and overall constitutional structure.

     Solum, Public Meaning Thesis, supra note 39 (manuscript at 51).

     By beginning this passage with an assertion that the communicative content of a constitutional provision is both a “a matter of fact” and “a matter of interpretation,” Solum appears to acknowledge that the “fact” of an original public meaning, going beyond minimally necessary and noncontroversial meaning, depends on a theory that permits the judging of proposed interpretations as correct or incorrect, but he never articulates what in the world makes it true that one interpretation is correct and another incorrect in reasonably disputed cases (not involving motivated reasoning or the like). ↑

202. See supra notes 25–26 and accompanying text. ↑

203. See, e.g., Josh Pasek & Jon A. Krosnick, Optimizing Survey Questionnaire Design in Political Science: Insights From Psychology, in The Oxford Handbook of American Elections and Political Behavior 32, 35–36, 38–39 (Jan E. Leighley ed., 2010). ↑

204. See supra notes 66–67 and accompanying text. ↑

205. See, e.g., Solum, supra note 84, at 253–55; Calabresi & Matthews, supra note 66, at 1398 (arguing that “it is the semantic original public meaning of the enacted texts,” rather than expected applications, that determines original public meaning). ↑

206. Cf. Bostock v. Clayton County, 140 S. Ct. 1731, 1750–54 (2020) (distinguishing original linguistic meaning from expected applications in the context of statutory interpretation). ↑

207. The classic source on modalities of constitutional argument is Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982). ↑

208. Williams, supra note 29, at 532–33. ↑

209. Id. at 544. ↑

210. Solum, Public Meaning Thesis, supra note 39 (manuscript at 51) (acknowledging that “in a prior version of this paper, I stated that my position was ‘very close’ to Williams”). ↑

211. Id. ↑

212. See supra notes 174–88 and accompanying text. ↑

213. See Foner, supra note 41, at 145–74 (discussing Fourteenth Amendment cases coming before the Supreme Court during Reconstruction and its aftermath). ↑

214. See generally Randy E. Barnett & Evan D. Bernick, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 Notre Dame L. Rev. 499, 507 (2019) (critiquing Lash’s “enumerated-rights-only” theory of the Privileges or Immunities Clause on originalist grounds); Kurt T. Lash, The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick, 95 Notre Dame L. Rev. 591, 593 (2019) (drawing on a “substantial body of preratification evidence” to advance contrary arguments, and contending that “[a]ll postratification evidence is necessarily weak as a source of original understanding”); Randy E. Barnett & Evan D. Bernick, The Difference Narrows: A Reply to Kurt Lash, 95 Notre Dame L. Rev. 679, 679 (2019) (offering a sur-reply to Lash and, in recognition of the historically complex dueling claims, “forgiv[ing] readers for having difficulty adjudicating this dispute”). ↑

215. 410 U.S. 113 (1973). ↑

216. See, e.g., Antonin Scalia, Session Three: Religion, Politics and the Death Penalty, Pew Rsch. Ctr. (Jan. 25, 2002), https://www.pewforum.org/2002/01/25/session-three-religion-politics-and-the-death-penalty/ [https://perma.cc/FK5N-WZV2] (quoting Justice Scalia as saying: “[M]y difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe—and no one believed for 200 years—that the Constitution contains a right to abortion.”). ↑

217. See Balkin, supra note 49, at 292 (maintaining that conventional critiques of Roe as unmoored from constitutional text are wrong). ↑

218. See supra notes 66–69 and accompanying text. ↑

219. See Balkin, supra note 49, at 292, 311–36 (elaborating these arguments); see also id. at 321–22 (“The original meaning of the Fourteenth Amendment . . . therefore presents no bar to the conclusion that sex discrimination violates the Constitution. The text of section 1 does not exclude women from its protections, and the underlying principle of equal citizenship applies to men and women equally.”). ↑

220. See supra notes 78–80 and accompanying text. ↑

221. See Solum, Originalist Methodology, supra note 15, at 293. ↑

222. See Barnett & Bernick, supra note 136, at 8–9. ↑

223. Id. at 227. ↑

224. Id. at 228. ↑

225. The phrase comes from Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 874–75 (2015) (advancing a theory of originalism that calls for adherence to “the Founders’ law, as lawfully changed” since the Founding). ↑

226. William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1082–83 (2017). ↑

227. William Baude & Stephen E. Sachs, Originalism and the Law of the Past, 37 Law & Hist. Rev. 809, 818–19 (2019). ↑

228. See Sachs, supra note 6, at 158. A close cousin of original-law originalism is the theory of original-methods originalism advanced by Professors John McGinnis and Michael Rappaport, which advocates interpreting the Constitution in accordance with the interpretive rules and methods that lawyers would have applied at the time of constitutional provisions’ adoption. John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 118 (2013). The authors believe that a variety of interpretive techniques that are either dictated by or consistent with the original law of interpretation would result in the size of the “construction zone” being relatively small. See John O. McGinnis & Michael B. Rappaport, The Power of Interpretation: Minimizing the Construction Zone, 96 Notre Dame L. Rev. 919 (2021). ↑

229. See Baude & Sachs, supra note 225, at 1083 (“[C]ontrary to the skeptics, extracting legal content from a written instrument needn’t involve much direct normative judgment. In fact, it usually doesn’t.”). ↑

230. See, e.g., Gienapp, supra note 113, at 116–23 (describing chaotic uncertainty about appropriate interpretive rules for the Constitution based on deeper uncertainty about what kind of document the Constitution was); Farah Peterson, Expounding the Constitution, 130 Yale L.J. 2, 2–3 (2020) (maintaining that litigants in early constitutional cases in the Supreme Court disputed whether the Constitution should be interpreted according to restrictive rules applicable to private legislation or the more flexible and pragmatic rules applicable to public legislation); Balkin, Construction, supra note 30, at 98; Larry Kramer, Two (More) Problems with Originalism, 31 Harv. J.L. & Pub. Pol’y 907, 912–13 (2008); Nelson, supra note 194, at 555–56, 561, 571–73. ↑

231. See Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court 130–32 (2018) (asserting the importance of argument in good faith to the legal and moral legitimacy of judicial decision making). ↑

232. 140 S. Ct. 2183 (2020). ↑

233. See, e.g., Saikrishna Prakash, Removal and Tenure in Office, 92 Va. L. Rev. 1779, 1815–45 (2006) (making a “sustained case” for a presidential removal power); Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1, 3, 6 (2020) (countering claims of some originalists that the Appointments Clause requires a presidential power to remove high federal officials by showing that the First Congress, with the approval of President George Washington and Treasury Secretary Alexander Hamilton, created a Sinking Fund Commission some of whose members enjoyed protection from presidential removal). Compare Seila Law, 140 S. Ct. at 2198–201 (affirming “the President’s general removal power” and noting only “two exceptions to the President’s unrestricted removal power” as articulated in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) and Morrison v. Olson, 487 U.S. 654 (1988)), with id. at 2226–31 (Kagan, J., concurring in part and dissenting in part) (emphasizing that the Constitution says “nothing at all” about the President’s removal power, and accusing the majority of “extrapolat[ing] an unrestricted removal power from such general constitutional language” which is “more than the text will bear” (alteration in original) (internal quotations omitted)). For examples of Founding-era disagreement over executive removal authority, see, e.g., The Federalist No. 77, at 459 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (asserting “[t]he consent of [the Senate] would be necessary to displace as well as to appoint” officers of the United States). Compare also Seila Law, 140 S. Ct. at 2205, with id. at 2229 n.4 (Kagan, J., concurring in part and dissenting in part) (disagreeing about the importance of Federalist No. 77). ↑

234.  567 U.S. 519 (2012). ↑

235. Compare id. at 550–51 & n.4 (suggesting “the language of the Constitution” and the Framing’s historical context together distinguished action from inaction), with id. at 610 (Ginsburg, J., concurring in part and dissenting in part) (contesting this history). But cf. David A. Strauss, Commerce Clause Revisionism and the Affordable Care Act, 2012 Sup. Ct. Rev. 1, 8–9 (arguing Necessary and Proper Clause obviated need for such historical analysis). ↑

236. See Alison L. LaCroix, The Shadow Powers of Article I, 123 Yale L.J. 2044, 2058–60 (2014) (discussing the scope of the Necessary and Proper Clause and whether it can be considered an enumerated power). Compare, e.g., Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 16–18 (2010) (articulating the view that the Framers used the term “commerce” at the Constitutional Convention broadly to include things like navigation, and calling a narrower conception “anachronistic”), with Barnett, Commerce Clause, supra note 9, at 104 (arguing that at the Constitutional Convention “the term ‘commerce’ was consistently used in the narrow sense and that there is no surviving example of it being used . . . in any broader sense”). ↑

237. U.S. Const. art. I, § 8, cl. 18. ↑

238. See, e.g., J. Randy Beck, The New Jurisprudence of the Necessary and Proper Clause, 2002 U. Ill. L. Rev. 581, 588–603; John Harrison, Enumerated Federal Power and the Necessary and Proper Clause, 78 U. Chi. L. Rev. 1101, 1125–26 (2011); see also Gienapp, supra note 113, at 90–92 (discussing disagreements between Anti-Federalists and Federalists during ratification debates). ↑

239. 558 U.S. 310 (2010). ↑

240. Compare id. at 385–93 (Scalia, J., concurring) (defending “the conformity of [the majority] opinion with the original meaning of the First Amendment”), with id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (disputing this analysis). ↑

241. U.S. Const. amend. I; see Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech, 86 Ind. L.J. 1, 9–22 (2011); see also Thomas F. Carroll, Freedom of Speech and of the Press in the Federalist Period; The Sedition Act, 18 Mich. L. Rev. 615, 627–37 (1920) (discussing early interpretations of the First Amendment and Congress’s ability to regulate the press). ↑

242. See Leonard W. Levy, Emergence of a Free Press, at xii–xv (1985); see also David A. Strauss, The Living Constitution 61 (2010) (suggesting “the First Amendment was not understood to outlaw prosecutions for seditious libel”). ↑

243. See generally, e.g., Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246 (2017) (arguing that speech and press freedoms in the Founding era were expansive in scope but weak in legal effect); Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2169–71 (2015) (arguing that early American courts employed a “broad but shallow” approach to the First Amendment under which speech that was not categorically excluded from constitutional protection could be penalized if it posed a “threat to the public order”). ↑

244. 554 U.S. 570 (2008). ↑

245. See id. at 605 (analyzing purported original public meaning of Second Amendment); id. at 652–79 (Stevens, J., dissenting) (challenging this analysis). ↑

246. Compare Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343 (2009) (arguing that while Heller reached the correct originalist result, its reasoning was incomplete), with Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 686, 688 (2007) (arguing that a “reasonableness” standard is consistent with the original understanding of the Second Amendment). ↑

247. Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013). ↑

248. Id. at 327–28 (Thomas, J., concurring). ↑

249. See, e.g., Klarman, supra note 124, at 25–26, 146. ↑

250. Solum, Originalism and Constitutional Construction, supra note 45, at 530. ↑

251. U.S. Const. art. I, § 8, cl. 1. ↑

252. Compare Alexander Hamilton, Report on Manufacturers (1791), reprinted in History of the United States: Political, Industrial, Social 506–07 (Charles Manfred Thompson ed., 1917) (arguing that Congress’s “power to raise money is plenary and indefinite”; that “[t]he terms ‘general welfare’ were doubtlessly intended to signify more than was expressed or imported in” the preceding list of congressional powers; and that as a result “[i]t is, therefore, of necessity, left to the discretion of the National Legislature to pronounce upon the objects which concern the general Welfare, and for which, under that description, an appropriation of money is requisite and proper”), with The Federalist No. 41 (James Madison) 262–63 (Clinton Rossiter ed., 1961) (arguing for a narrow construction of the clause, and describing Hamilton’s approach as a “misconstruction” that only “might have had some color” in a counterfactual where “no other enumeration or definition of the powers of the Congress been found in the Constitution”); see also, e.g., United States v. Butler, 297 U.S. 1, 64 (1936) (noting disagreement but concluding that “[t]he true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision for the general welfare”); 1 Joseph Story, Commentaries on the Constitution of the United States § 922, at 672–73 (Melville M. Bigelow ed., William S. Hein & Co. 5th ed. 1994) (1833); Herman J. Herbert, Jr., Comment, The General Welfare Clauses in the Constitution of the United States, 7 Fordham L. Rev. 390, 396–403 (1938). ↑

253. See generally Julian Davis Mortenson, Article II Vests the Executive Power, not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019) (arguing for a narrow reading of the executive vesting clause); see also Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701 (arguing the original public meaning of the executive vesting clause was merely the power to execute the law); cf. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1175–79 (1992) (arguing that the executive vesting clause incorporates a broad understanding of executive power). ↑

254. See David Luban, On the Commander in Chief Power, 81 S. Cal. L. Rev. 477, 483–84 (2008) (“The Commander in Chief Clause is a sphinx, and specifying its powers and the theory generating them is its riddle.”); see generally Richard A. Epstein, Executive Power, the Commander in Chief, and the Militia Clause, 34 Hofstra L. Rev. 317 (2005) (evaluating various views of the commander in chief power); Jesse H. Choper, Michael C. Dorf, Richard H. Fallon, Jr. & Frederick Schauer, Constitutional Law 213–17 (13th ed. 2019) (noting and summarizing debate over the scope of executive war powers). ↑

255. See, e.g., Gienapp, supra note 113, at 92–95 (noting Anti-Federalists’ on Article III’s provision for judicial power as dangerously “imprecise”). Among the specific disputes that persisted after ratification involved whether the judicial power encompassed a power to develop a federal common law of crimes. See, e.g., Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart & Wechsler’s the Federal Courts and the Federal System 638–42 (7th ed. 2015). ↑

256. Compare, e.g., United States v. Windsor, 570 U.S. 744, 786 (2013) (Scalia, J., dissenting) (describing the adverse-party requirement as “not a ‘prudential’ requirement that we have invented, but an essential element of an Article III case or controversy”), with James E. Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346, 1355–56 (2015) (arguing that Article III’s embrace of both adversarial hearings and ex parte hearings derives from Roman and civil law). See James E. Pfander & Emily K. Damrau, A Non-Contentious Account of Article III’s Domestic Relations Exception, 92 Notre Dame L. Rev. 117, 118–19 (2016) (arguing that the bar to Article III jurisdiction over “domestic relations” derives from the distinction between “cases” and “controversies” and the consensual relations that underrides much of domestic relations law); James E. Pfander & Daniel Birk, Adverse Interests and Article III: A Reply, 111 Nw. U. L. Rev. 1067, 1068–71 (2017) (rejecting an argument that even if “cases and controversies” do not require “adverse parties,” they require “adverse interests”). ↑

257. Compare Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 272 (1985) (arguing that Congress must confer federal jurisdiction, in either original or appellate form, over all cases arising under the Constitution), with Daniel J. Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569, 1624–30 (1990) (arguing that Amar’s thesis is unproven and that Congress has more discretion about whether to provide for either lower federal court or Supreme Court appellate jurisdiction). ↑

258. See generally Richard H. Fallon, Jr., Implementing the Constitution (2001) (identifying implementation as a task partly distinct from interpretation). ↑

259. See, e.g., Baude & Sachs, supra note 225, at 1094–96 (discussing legal rules for achieving determinacy in the interpretation of contracts, deeds, and wills). ↑

260. See id. at 1083, 1125 (“[C]ontrary to the skeptics, extracting legal content from a written instrument needn’t involve much direct normative judgment. In fact, it usually doesn’t.”). ↑

261. See Mark Greenberg, What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants, 130 Harv. L. Rev. F. 105, 114–19 (2017) (explaining that the absence of consensus either about interpretive methodologies or the criteria for their validation falsifies claims for the determinacy of the law of interpretation under premises that Baude and Sachs purport to accept). ↑

262. See Fallon, supra note 230, at 147–48. ↑

263. On the obligation-altering implications of legitimate authority, see H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory 243–47 (1982); Frederick Schauer, Authority and Authorities, 94 Va. L. Rev. 1931, 1939 (2008). ↑

264. See Raz, supra note 28, at 284 (linking legislative intentions to law’s authority as well as its intelligibility). ↑

265. See Fallon, supra note 230, at 79–82. ↑

266. See id. at 81–82. ↑

267. See Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1237–51 (1987). ↑

268. See id. at 1252–68. ↑

269. See Fallon, supra note 230, at 51. ↑

270. See id. at 51–65. ↑

271. See Klarman, supra note 124, at 25–26, 146 (“[T]he original understanding of the Fourteenth Amendment plainly permitted school segregation.”); Bickel, supra note 107, at 58–59 (acknowledging “[t]he obvious conclusion” that the Fourteenth Amendment was not intended to apply to school segregation). ↑

272. See David A. Strauss, The Supreme Court, 2014 Term—Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 1, 57 (2015) (“The key point is one that Jefferson recognized: original understandings are binding for a time but then lose their force.”); id. at 58 (“[A] decision that would be lawless in the immediate wake of a constitutional amendment might be acceptable—in fact is, in our system, routinely accepted—after time has passed.”); Primus, supra note 25, at 170. ↑

273. 347 U.S. 483 (1954). ↑

274. Id. at 489. ↑

275. Id. ↑

276. Id. at 492–93. ↑

277. See Balkin, Construction, supra note 30, at 73; Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo. L.J. 1765, 1766–67 (1996). ↑

278. A prominent example involves Thomas Jefferson’s image of “a wall of separation between Church and State.” Letter from Thomas Jefferson to a Committee of the Danbury Baptist Association (Jan. 1, 1802), in 16 The Writings of Thomas Jefferson 281, 282 (A. Lipscomb ed., 1904). Jefferson’s metaphor has become a fixture of American First Amendment law. See, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)); see also Developments in the Law: Religion and the State, 100 Harv. L. Rev. 1606, 1635–37 (1987) (exploring history and impact of this metaphor). ↑

279. As I have argued elsewhere, I believe that participants in constitutional practice do best to develop their theories on a partially rolling basis as they reflect on the attractiveness of provisional interpretive principles in light of the outcomes that those principles would yield in particular cases and seek a “reflective equilibrium” between their interpretive principles and their substantive judgments about contested issues. See Fallon, supra note 230, at 142–54 (defending a second-order Reflective Equilibrium Theory of constitutional interpretation). ↑

280. M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). ↑

281. See, e.g., Balkin, Living Originalism, supra note 30, at 21–35 (articulating a theory of “framework originalism” under which constitutional language provides a framework for debate and decision while leaving many outcomes underdetermined); Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 4 (2009) (describing how shifts in public opinion and expectations have shaped interpretation of the Constitution by the Supreme Court); see also David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 911 (1996) (“On the conventionalist account, the Constitution is a focal point . . . our culture has given it a salience that makes it the natural choice when cooperation is valuable.”). ↑

282. There are arguable exceptions. For example, although the First Amendment begins by prescribing that “Congress shall make no law,” U.S. Const. amend. I, courts interpret it as applying to the executive and judicial branches. See Strauss, supra note 271, at 30 (observing that despite its text the First Amendment “uncontroversially” applies against all three branches of the federal government); see also Curtis A. Bradley & Neil S. Siegel, Constructed Constraint and the Constitutional Text, 64 Duke L.J. 1213, 1244–47 (2015) (“American constitutional practice . . . has always viewed the First Amendment as relevant to the conduct of the entire federal government, not just Congress.”). In what many believe to be a similar deviation from original semantic meaning, the Supreme Court has held since 1954 that the Due Process Clause of the Fifth Amendment subjects the federal government to the same equal protection norms that the Fourteenth Amendment explicitly imposes on the states. See Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954); Adarand Constructors v. Pena, 515 U.S. 200, 217 (1995). The Court has adopted this interpretation even though the Fourteenth Amendment refers only to the states and virtually no one, at the time of the Fifth Amendment’s ratification, understood the Due Process Clause as barring race-based discrimination. Overall, semantic content provides a presumptive mooring in identifying constitutional meaning, but one that is sensitive to other factors of recognized legitimacy in constitutional argument. See Bradley & Siegel, supra, at 1244–47; Strauss, supra note 271, at 4 (“Clear text does not always govern, as the anomalies show; there are times when established principles are simply inconsistent with the text.”). ↑

283. See Foner, supra note 41, at 89. ↑

284. See Strauss, supra note 241, at 111–14. ↑

285. There is a vast literature on the mechanisms by which shifting public opinion affects appointments to and decision making by the Supreme Court. Influential contributions include Bruce A. Ackerman, We the People, Volume I: Foundations (1991); Friedman, supra note 280; Barry Friedman, Mediated Popular Constitutionalism, 101 Mich. L. Rev. 2596 (2003); and Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Calif. L. Rev. 1027 (2004). ↑

286. See generally Robert A. Dahl, Democracy and Its Critics 190 (1989) (“[T]he views of a majority of the justices of the Supreme Court are never out of line for very long with the views prevailing among the lawmaking majorities of the country.”); Robert G. McCloskey, The American Supreme Court 224 (1960) (“[I]t is hard to find a single historical instance when the Court has stood firm for very long against a really clear wave of public demand.”). ↑

287. See Fallon, supra note 13. ↑

288. See, e.g., John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 120. ↑