There is No Original Public Meaning of Imprecise Constitutional Text: A Tribute to Professor Richard H. Fallon, Jr.

Yesterday, Mike wrote a poignant tribute to Professor Richard H. Fallon, Jr., a legendary law professor at Harvard Law School. Dick was a brilliant scholar and wonderful human being. Our paths crossed numerous times over the years, and he was always incredibly generous both to me and my work, whether he agreed with what I was saying or not. That is just who he was, and I can't add anything of personal value to Mike's wonderful post.

Instead, and maybe selfishly, I want to honor Dick in a different way. I have spent much of my academic career reading, writing, and talking about originalism, culminating but not ending in my book "Originalism as Faith." Subsequent to the publication of that book, Dick wrote what I think is one of the finest articles ever written on the subject, "The Chimerical Concept of Original Public Meaning."

Please don't let the term "chimerical" distract from the thesis of this piece, which is that for the constitutional provisions that lead to litigation, there is no original public meaning, and therefore the entire structure of modern originalism is incoherent. I want to summarize this fine and astute article as a tribute to one of this country's most important legal minds (and to support what I have been arguing for decades). Of course, my first choice is that you, the reader, read the entire article, which I can't do justice to here. But the highlights demonstrate without a doubt the absurdity of a constitutional theory that relies on the original public meaning of imprecise constitutional text.

Near the beginning of the article, Dick makes two assumptions that virtually all originalists accept: 

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 mean or (2) what literate and informed members of the public actually understood it to be at the time of promulgation.

In other words, the Constitution means today what it meant when ratified according to either what a hypothetical reasonable observer would have thought or what informed members of the public (mostly lawyers and politicians) actually thought. And, of course, originalists believe that, however one discovers that meaning, it is binding on judges today (with the possible exception of following non-originalist precedent).

Dick also makes the following obviously correct observation: 

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,” 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. 

Dick then goes to say that if "originalists defined constitutional provisions’ original public meanings as limited to their minimal meanings and nonmeanings," he "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." And neither do I.

Instead, originalists, both academic and judicial, "believe that there is a historically and linguistically discoverable original public meaning that is capable of resolving... such historically disputed questions as whether the Second Amendment...safeguards a personal right 'to keep and bear arms' for purposes of self-defense; whether the Free Speech Clause of the First Amendment protects corporate spending to influence political campaigns; and whether the Fourteenth Amendment bars discrimination on the basis of sex or sexual orientation. Historically disputable issues such as these dominate the Supreme Court’s docket of constitutional cases."

And then Dick gets to the heart of matter: "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 issue." 

The rest of the article fleshes out this, to me, self-evident truth. Dick relies on prominent historians such as Jack Rakove and Eric Foner for the propositions that the people who wrote and ratified both the original Constitution and the Reconstruction Amendments disagreed among themselves about the meanings of imprecise constitutional text. 

In the context of the original Constitution, whether Congress could create a national bank is the most obvious and important of too many examples to name. Hamilton, Madison, and Jefferson, among many others, debated this problem, and eventually President George Washington sided with Hamilton and against Jefferson and Madison as a political matter. But to suggest that there was one discoverable original public meaning about this question is simply absurd.

In the context of the Reconstruction Amendments, the meanings of Section 1 of the 14th Amendment (the equal protection, due process, and privileges or immunities clauses) were hotly debated at the time:

If asked what the language of Section 1 of the Fourteenth Amendment meant or how it ought to be interpreted, many members of Congress would have disagreed with one another, professed uncertainty, or described the language as relevantly indeterminate. Among the reasons for the continuing failure to achieve either clarity or agreement was that the second founding took place in response to rapidly changing political and social imperatives at a moment when definitions of citizenship, rights, and sovereignty were in flux.

So, when originalists today argue for one original meaning over another as applied to contemporary issues such as LGBTQ rights, they are disputing at best shadows and illusions. This is not to deny, as Dick concedes, that some outlandish interpretations are less persuasive than others or that some obvious interpretations are more persuasive than others. But, as Dick also emphasizes throughout the piece, we do not litigate obviously absurd or obviously correct interpretations.

Dick provided many examples of the intractable problems with judges and scholars pretending that imprecise constitutional provisions had a single original public meaning. One of them is an example I have used in my book, my articles, and my many blog posts on the subject:

Professor Solum...argues that the linguistic meaning of the Privileges or Immunities Clause forbade states to exclude women from law practice—even though the Supreme Court concluded otherwise in Bradwell v. Illinois (decided in 1873). In rejecting Bradwell, Solum does not appeal to any imagined headcount concerning the meaning that people living in 1866 or 1868 ascribed to the Fourteenth Amendment. Rather, taking the linguistic meaning of relevant language to be both plain and plainly applicable, he views Bradwell as based on a “factual” mistake by the Justices in the majority about women’s physical and mental capacities. 

Although I understand why Solum’s interpretation would have been a plausible one, others could have seen, and some apparently did see, the drafting context of the Fourteenth Amendment ... as signaling an implicit tolerance for some sex-based disparities. In light of that disagreement, the question becomes how disputes such as those between Solum and the Bradwell majority could be resolved as a matter of historical or linguistic fact. So far, neither Solum nor any other adherent of public meaning originalism has proffered an adequate answer.

There is, of course, no plausible answer to this question based on original meaning without dubious and contestable assumptions as to how one discovers original meanings, a point Dick makes brilliantly with many examples throughout the article. Dick concluded this great piece as follows:

The difficulty for public meaning originalists is not that there are no historical and linguistic facts bearing on constitutional meaning, but that courts must construct legal meanings out of an often diverse welter of facts. If originalist Justices tell us that they have found uniquely correct factual meanings that provide determinate resolutions to constitutional disputes, we should view their claims with skepticism. The only original public meanings that existed as a matter of purely historical and linguistic fact are minimally necessary and noncontroversial meanings. When we absorb this truth, the great challenge—for originalists and nonoriginalists alike—is to understand and discipline the process by which courts appeal to historical facts to construct constitutional meanings as a matter of law. 

There is much, much more to this article than I have highlighted here. But I can think of no better tribute to this fine scholar and wonderful person than to suggest that he, better than anyone else, destroyed the terrible myth that plagues so much of modern constitutional law: that judges can persuasively decide real cases by relying on the original public meaning of constitutional text. They simply cannot. 

Eric Segall