I’ve enormously enjoyed Don Drakeman’s posts, and had questions for the readership here (and for Don!) about this post involving original meaning and original intent. Don raises a number of points that I’ve been having a hard time wrapping my mind around with respect to the contemporary discussion of new (or new new) originalism. First, are there still advocates (besides Don) of the utility of original intent originalism floating about? I think there are (Larry Alexander comes to mind, and I have a memory of something on this by Steve Smith, too) but they seem to be grossly (and increasingly?) outnumbered by original meaning originalists. I should also note that Don, from my reading of his work, is not exclusivist about original intent. He simply thinks it might be useful evidence to consider. Second, is what Don says about the equivalence between the substantial underdeterminacy of original meaning originalism and original intent originalism accepted by original meaning originalists (see Don’s example about the varying interpretations of establishment in Massachusetts and New Hampshire, and for more examples, see his book)? There may, of course, be reasons to opt for original meaning over original intent (though the hypothetical time-traveling law professor analogy presents its own problems), but isn’t Don right that mitigating the problems of underdeterminacy surely is unlikely to be one of them?
One other question that comes to mind for me when originalism and the Religion Clauses come up is why some folks resort to Framer-centered interpretation for other areas of law (e.g., the Eighth Amendment), but won’t touch it (or will only do so gingerly) when it comes to religious questions. It doesn’t seem to me that the religious issues (or founding history) are inherently more intractable or indeterminate, are they? Aside from Justice Thomas’s writing in Van Orden (which seems to have been Bush v. Gored in terms of how much fruit it has borne), there doesn’t seem to be much out there in terms of systematic reflection (as opposed to cherry-picked “James Madison agrees with me!” types of evidence).
Mark, It seems to me that the New Originalists would’ve tumbled to this problem the first time they looked at The Free Dictionary to read that the definition of “originalism” is: “the belief that the US Constitution should be interpreted according to the intent of those who composed and adopted it.” At this point, they would have either had to
declare themselves not to be originalists at all, or they would have figured out that identifying a single, clear “public meaning” can be pretty complicated. But since so many New Originalists seem to be described as “constitutional theorists” (a title I don’t recall seeing when I was in law school many years ago), it may be less important to them whether New Originalism actually works in practice. For what it’s worth, my sense is that a lot of research needs to be done to see if there really is one objective public meaning for the constitutional
terms most likely to be litigated. Based on the limited research I have done to date, I think that single meaning is unlikely to be found for a number of important provisions. If I’m right about that, the most likely originalist outcome is a move either toward Old Originalism as a tiebreaker (as Joel Alicea and I have suggested) or to New New
Originalism, where the words can be constructed in the direction of a variety of modern meanings. One final point: It does seem to me that the New Originalists may have an advantage on the domestic front. When their agitated spouses say, “What did you mean by that?” all they have to do is hand over the dictionary. Don