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 Protestant ministers that existed in New England at the time of the Constitution. The Massachusetts courts called it an “establishment,” whereas the New Hampshire courts said that the same system definitely was not an establishment.
So, when we look at the First Amendment, which is the objective public meaning of “establishment,” the MA version or the NH version? There are two perfectly good choices that happen to be inconsistent with each other. Wouldn’t it be useful to know what the actual people who adopted and ratified the establishment clause thought it meant?
Well, I think so. But it’s not what “we mean by original meaning,” say the experts.
Hey, wait a minute. How does the objective public meaning crowd get away with saying, “that’s not what we mean”?
P.S. This brings my guest blogging month to an end. I want to thank Mark and Mark for running an outstanding religion and law forum, and for giving me a chance to share my often idiosyncratic views. I also want to thank those who commented on my posts, either at the site or in separate emails. It’s been great to be part of the broader intellectual community interested in religion and law. Henceforth, I will certainly be a devoted follower of the forum.