Over the last couple of years, I’ve had the chance to talk about my church-state book at a few law schools. At least twice, a distinguished Con Law professor responded along the lines of, “Sure, that may be what the establishment clause meant to the people who adopted it, but that’s not what we mean by ‘original meaning.’”
Around many law schools these days, “original meaning” has nothing to do with the people we often call the Framers. Rather, the core of modern originalism is the search for “objective public meaning” – that is, what an average or reasonable person at the time would have understood the text to mean. Some even point to a hypothetical ratifier with full knowledge of all the circumstances (essentially, in my view, a time-traveling law professor).
So what happened to the Framers? Basically, they’ve been expelled along with all forms of “intentionalism,” now known as the Old Originalism of the “undertheorized” past. Too many Framers for one intent, it seems. And, besides, as Justice Scalia often points out, it’s often easy to find some Framer whose policy choices are the same as yours, thus allowing too much results-driven analysis.
These are good criticisms. Just look at how the Supreme Court latched onto Madison and Jefferson to build its wall of separation jurisprudence without considering what anyone else might have thought.
What I find perplexing is that people believe that the hunt for objective public meaning avoids these problems. Let’s look, for example, at the system of town-based taxes for Read more