With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a citizen or a judge—and using the best linguistic resources available—would have understood the language in question. This approach does not assume that the Constitution’s entire content was fixed at the point of adoption. Ample room is left for the subsequent construction of additional meanings, in places where the Constitution is silent or ambiguous; originalists can differ—and differ substantially—over where to draw the boundaries between the realms of fixation and construction. In this approach, evidence of the political intentions and purposes of the adopters of the text—whether Framers or ratifiers—appears to have relatively little if any bearing on the Constitution’s meaning. The statements they made in debate matter not as evidence of political intention, but rather as additional linguistic clues to the semantic meaning of disputed terms.
Tone Deaf to the Past: More Qualms About Public Meaning Originalism,
84 Fordham L. Rev. 969
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