Note: this is the second in a series of blog posts responding to Larry Solum’s defense of public meaning originalism.
In his statement in support of Judge Gorsuch, our friend and colleague Larry Solum identifies four myths or misconceptions about originalism. Myth #1 is that originalism requires judges to figure out the secret intent of the framers of the Constitution. According to Solum, however, this is not really what “public meaning originalism” is about. Instead, Solum says that originalism is about the words in the Constitution, not the intent of the framers: “No originalist thinks that we should decide contemporary constitutional cases by asking, ‘What would James Madison do?’ What matters for originalists is what the constitutional text says. When Judge Gorsuch writes an opinion that applies the original public meaning of the constitutional text to a contemporary legal question, he does not need to know anything about the mental states of the Framers regarding that question.” But with all due respect to Professor Solum, the fundamental problem with originalism is that there is often no obvious or single “public meaning” of a given constitutional text, especially when the text in question consists of open-textured terms, i.e. words susceptible to competing interpretations.
By way of example, let’s consider the public meaning of “due process of law,” a fundamental constitutional right that appears in two different parts of the Constitution, the Fifth Amendment, which was ratified in 1791, and the Fourteenth Amendment, which was ratified in 1868. What is the public meaning of due process? In particular, are “enemy combatants” captured overseas in Iraq or Afghanistan and detained indefinitely in Guantanamo Bay, Cuba entitled to due process of law under the Constitution, and if so, how much due process? Specifically, does due process require a public jury trial in a regular court of law, or does a secret trial in a makeshift military court satisfy the due process rights, if any, of enemy combatants? Or what about State and federal civil forfeiture laws? When do these procedures violate due process?
In sum, public meaning originalism is of no help in hard or close cases. No theory of interpretation can provide us any definitive or principled answers to these specific legal questions. Why not? In the case of originalism, because there are potentially multiple public meanings of the term “due process,” depending on which historical “public” we privilege, e.g. the public consisting of all men eligible to vote in 1791, the public consisting of men who fought to defend the Union during the Civil War, or the public consisting of all civil war combatants. Moreover, notice how narrow all these potential publics are. None of these publics include women, immigrants, or slaves, let alone Native Americans, since they could not and did not formally participate in the process of constitutional decision-making in 1791 or 1868. Worse yet, even if we could agree on which of these historical publics to privilege, there is still no guarantee that we will find a unified public meaning out there. Any given “public” consists of competing groups of individuals, each with their own agendas and visions of the Republic. (We will address Myth #2 in our next blog post.)