Originalism 2.0

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An email from Jonathan Weinberg:

I'm passing along, for whatever interest it holds, Jonathan Gienapp's new (to my mind very good) essay on originalism in constitutional law, which I thought you might appreciate.  [(myl) Jonathan Gienapp, "Constitutional Originalism and History", Process 3/20/2017.] His focus is on originalists' shift from their initial position that the Constitution should be interpreted in accordance with its drafters' intentions, to their more recent position that it should be interpreted in accordance with its "original public meaning" — that is, in accordance with what a well-educated person, at the time the document was promulgated, would have understood its text to mean.  Gienapp makes the point, which I had not before thought to put that way, that while "Originalism 1.0" called for the use of historians' tools, Originalism 2.0 — the search for original public meaning — calls instead for linguists' tools.  As a historian, he decries this; he urges that historians' tools are essential to determine the meaning of a document in its original historical context.

As Prof. Gienapp observes, the main force behind Originalism 2.0 was Antonin Scalia. For more on Justice Scalia and the transformation of originalism, see

"Scalia on the meaning of meaning", 10/29/2005
"A result that no sensible person could have intended", 12/8/2005
"Is marriage identical or similar to itself?", 11/2/2005
"Everything is too appropriate these days", 4/5/2006
"Does marriage exist in Texas?", 11/19/2009
"The meaning of meaning: Fish v. Scalia", 1/4/2011
"Justice Breyer, Professor Austin, and the Meaning of 'Any'", 6/6/2011
"Scalia and Garner on legal interpretation", 7/17/2012
"What did Justice Scalia mean?", 10/7/2013

For Scalia's arguments against Originalism 1.0, or at least against its reliance on considerations of original intentions, see  his review of Steven Smith's Law's Quandary, discussed in "Scalia on the meaning of meaning". For a contrary view, see Larry Solan's 2004 article "Private Language, Public Laws: The Central Role of Legislative Intent in Statutory Interpretation".



10 Comments

  1. J.W. Brewer said,

    March 23, 2017 @ 8:38 am

    I must say I'm not bowled over by a guy with a hostile attitude toward "so-called 'corpus linguistics.'" Nor am I impressed with the claim that it's a Bad Thing to rely on the tools of linguistics for interpreting important texts to a greater degree than was perhaps previously fashionable among the judiciary. That said, a sophisticated approach to the original public meaning of a text should take into account the genre of the text and the context in which it was promulgated (probably a better word than "uttered" for the relevant sort of text), since both of those would be highly relevant to how the public at the time would have interpreted the text's meaning, and it seems like historians could have value to add to the linguistic enterprise there when we're talking about older texts. I don't know to what extent the more recent originalist scholars have resisted useful historical input re genre/context — I have crossed paths earlier in my life with some of the names mentioned but have frankly tuned out of the last 15-20 years of scholarship in the area.

  2. Ben Zimmer said,

    March 23, 2017 @ 10:52 am

    So-called is a tricky descriptor. While it may often come from a place of condescension or hostility (as in Trump's "so-called 'judge'" putdown), in some contexts — like legal ones — it's more neutral in its connotations. Other NPs modified by so-called in this piece include public meaning, historians' amicus brief, and first-wave originalism (though corpus linguistics is the only one scare-quoted).

  3. Gregory Kusnick said,

    March 23, 2017 @ 12:40 pm

    So originalism no longer means what the original originalists intended it to mean?

  4. J.W. Brewer said,

    March 23, 2017 @ 2:17 pm

    The piece is maybe a little vague on timeline – while it correctly notes that "original intent" (version 1.0) was the buzzword of the '70's & '80's and already in trouble by the end of the latter decade, most of the description of version 2.0 is from the last decade or so. But I am reasonably sure version 2.0 ("original public meaning," although perhaps not always with that form of words) was the dominant view of self-identified originalists in the legal academy by the mid/late '90's, and probably earlier. (A well-known critique by Michael Dorf published in 1998 makes clear that by "originalism" it means v 2.0 while noting that the same word has been used for v. 1.0.) It was certainly floating around in an early form (specifically associated with the way in which Scalia's approach was u nderstood to be different than that earlier advocated by Bork) by the time I was in law school myself ('89 through '92), but since the law review articles in which it was developed are spottily represented in the google books corpus and other free-to-search databases, tracking down the more precise details of the timeline requires more work than I am able to devote right now. There is a parallel (not least because Scalia was an enthusiast of both) between public-meaning originalism and textualist approaches to statutory interpretation, although obviously the more recently enacted the statute the lesser the risk that language has changed so much over the intervening years as to make recovery of the text's original meaning difficult.

  5. Neal Goldfarb said,

    March 23, 2017 @ 3:16 pm

    For those interested in the development of originalist theory, take a look at Larry Solum's paper What Is Originalism? The Evolution of Modern Originalist Theory.

  6. Neal Goldfarb said,

    March 23, 2017 @ 3:24 pm

    I forgot to mention that Larry Solum strongly supports the use of corpus linguistics as a tool in legal interpretation. Also, he shouldn't be confused with Larry Solan.

  7. J.W. Brewer said,

    March 23, 2017 @ 8:04 pm

    OK, there you go. The Solum piece Neal Goldfarb links to has Scalia drawing the original intent v. original meaning distinction as early as '86 (when I was still in college) and the specific phrasing "original public meaning" coming from a '92 article by Gary Lawson, whom I heard speak on quite a number of occasions in the late '80's and early '90's. (Lawson was actually a teacher of mine in I think 1990, but for a class in administrative law, which was not a context in which his theories of constitutional interpretation tended to come to the fore.)

    The relevance of this timeline to today's headlines is that the early development of Originalism 2.0 was happening a quarter century and change ago, not only during my own law school years but more relevantly during the law school years of Neil Gorsuch (at Harvard from '88 through '91) and thus is a way of thinking about these things he has been exposed to for his entire career rather than a newer scholarly concoction he would have had to have picked up more recently.

  8. Joyce Melton said,

    March 24, 2017 @ 3:45 am

    I've yet to see a judge using originalism to justify making a decision that they did not want to make in the first place in line with their pre-existing political bias, usually disguised as a philosophical position. To me it is simply an empty term that means whatever the judge who uses it wants it to mean for the case in front of them at the time.

    And the idea that the law does not mean what the people who wrote it intended it to mean but that it means instead what the unknowable consensus of some undefinable other group may, possibly, have thought it meant is intellectually bankrupt on the face of it.

    It certainly has no moral superiority over the position that the law should be re-interpreted for changing modern circumstances. How the heck could an agrarian society 250 years ago have been able to make a law regarding intellectual property rights in a world of nearly costless digital reproduction and transmission that would NOT need to be re-interpreted, just as an example.

  9. Curtis Booth said,

    March 24, 2017 @ 9:39 am

    Adam Gopnik cogently argued in The New Yorker a while ago that "Originalism is philosophically incoherent (the old texts bear the same multivalent marks of dispute and argument that persist now) and in practice ridiculous. (Think only of the diametrically opposite results that derive from regarding the preamble to the Second Amendment as a controlling, or a dependent, clause.)"

  10. Mats Rooth said,

    March 25, 2017 @ 8:59 am

    Linguistic semanticists tend to like Originalism 2.0, because it aligns pretty well with the notion of literal meaning as they apply it in linguistic theory. Even making this identification, it is seemingly necessary to refer to intent, because it is disambiguated syntactic structures that have literal meanings, not word strings. And those structures may contain free context variables, such as domains of quantification variables, than need to be fixed before a literal meaning can be computed using an interpreted grammar. The latter comes up in the does-'any'-mean-any controversy in Small v. United States. See Kai von Fintel's languagelog post on it.

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