Peter Ludlow Misunderstands Original Public Meaning

Read this interview, and take a gander especially at the following:

. . . most conversations take place between individuals with different levels of power, and there is often a presumption that we should defer to the lexical semantics of the person in power – whether that be a teacher or a politician or a billionaire. I’m hoping that by making the process of meaning litigation transparent and setting out some norms for word meaning litigation it will give people tools to stand up to power and assert their claims for what words should mean, independently of power relations.

There is a related issue about silencing. Rae Langdon, has talked about “illocutionary silencing” – the idea that, for example, women can be pragmatically silenced. My student Rebecca Mason pointed out to me that the dynamic lexicon has additional consequences for how we can think about silencing; there can also be locutionary silencing. So, for example, people can simply refuse to entertain a modulation of a term like ‘rape’ or ‘marriage’ (e.g. “marriage can only happen between a man and a woman by definition, end of story”) and this refusal to engage is a way of not letting you express new ideas.

An example of this is Antonin Scalia and his doctrine of “Original Meaning.” From the perspective of the dynamic lexicon meanings are very dynamic and always undergoing modulation. When Scalia says “words mean what they mean” he is in effect saying that he gets to stipulate what they mean; end of discussion. Well that is a form of silencing, and it is really horrifying that a jurist at any level would take such a view.

It is frankly ridiculous to claim that “[w]hen Scalia says ‘words mean what they mean’ he is in effect saying that he gets to stipulate what they mean; end of discussion.” Original public meaning does not contend that one particular jurist–or even a set of jurists–get to decide what words mean “end of discussion,” and Ludlow does not even appear to contemplate the possibility that an originalist judge may be forced to accept that the words of a certain statute or constitutional provision may mean something the judge may not have preferred that language to mean, given that judge’s policy preferences. On what original public meaning jurisprudence really says, and how it is applied, see this previous blog post of mine, and see especially the following excerpt from Lawrence Solum:

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism.  The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.”  Balkin has called his position on the relationship between originalism and living constitutionalism “comptibilism,” but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

(Emphasis in the original.) Nowhere does this discussion of original public meaning jurisprudence allow for–or even contemplate–giving power to jurists like Antonin Scalia to “stipulate” what words mean, “end of discussion.” Even if Scalia wanted to arrogate such power to himself, he would find himself opposed by–guess what?!other adherents of original public meaning jurisprudence who might disagree with Scalia’s interpretation of constitutional or legislative text. (Yes, in shocking news, we learn that adherents of original public meaning jurisprudence are not a hive mind, and from time to time, they take issue with one another. Relatedly, see this old article of mine, and note that in Raich, Scalia was content to concur in the majority’s decision, while Justice Thomas dissented strongly. Just out of curiosity, which originalist gets to shut the other up with “end of discussion”?)

Thus, we find that Ludlow’s critique of Scalia and original public meaning jurisprudence does not hold water. There is no explicit or implicit tenet attached to original public meaning jurisprudence that says that any one jurist–or any group of jurists–can bestow upon themselves the power and authority to decide what words mean “end of discussion,” and any jurist who dared try to claim such power would run into roadblocks placed by other adherents of original public meaning jurisprudence. Judges and justices generally tend to be smart people and know all of this, of course, which is why they are often found engaging and contending with differing arguments, rather than trying to put the kibosh on debate with words like “end of discussion” at the end of a particular statement. Additionally, an originalist interpretation of constitutional or legislative text may often lead to an interpretation that the originalist judge would not have wanted the text to convey had s/he been a legislator, but may be forced to accept nonetheless. And finally, anyone and everyone is free to “express a new idea” against arguments from the school of original public meaning, but the virtues of original public meaning include the ability to show us what the language of a particular law means or meant in the context and period in which it was drafted and implemented–a bit of knowledge that I daresay is valuable to have at our disposal when courts are faced with the task of interpreting the law in question.