You should take a look at Steve Smith’s superb piece criticizing original meaning originalism and proposing something that he calls decisional originalism. More and more, I am coming to believe that original expected applications originalism has a lot more going for it than is commonly thought. Opponents as well as advocates (in fact, especially advocates) of original meaning originalism don’t have much time for it. But Steve is on to something important in this short reflection. Note, also, the relevance of the method of common law reasoning for constitutional interpretation in Steve’s presentation of decisional originalism, something that I also agree is regrettably sidelined today:
If original meaning does not avoid the authority and rationality objections that gave rise to originalism, is there some criterion that would better serve the originalists’ purposes?
Maybe. Or at least the foregoing discussion has already suggested a possibility. Constitutional interpretation might attempt to ascertain and follow the original constitutional decision. After all, authority exerts itself, and rationality manifests itself, in decisions. To be sure, once made, those decisions are expressed in words—words that have meanings. We necessarily use the words (among other things, such as the historical context) to try to understand and reconstruct the decisions. Still, if our goal is to respect the constitutional assignment of authority and to facilitate rational decision-making, then we should not care about either the words or their meanings for their own sakes. We pay attention to them, rather, for the purpose of ascertaining and following the enactors’ decisions.
This distinction between meanings and decisions is subtle, but it is not wholly unfamiliar. Back when lawyers and scholars took common law reasoning more seriously than perhaps they do now, even a legal realist like Herman Oliphant could intelligibly contend that what binds in a legal precedent is what the court decided, not what the court said. Stare decisis, not stare dictis. My suggestion is that a similar distinction might be employed in the context of constitutional interpretation. In common law reasoning, to be sure, the distinction may seem more manifest because there is no canonical statement of the decision, anyway. With constitutional provisions (and statutes) there is a canonical wording; but that fact, I think, need not dissolve the distinction between decision, on the one hand, and textual meaning, on the other.
Just how an approach focusing on the original decision would differ from one focusing on original meaning is a complicated question, about which I cannot say much in a short essay….
For now, though, two observations may be suggestive.
There should be no great difficulty in concluding that the Fourth Amendment “search and seizure” provision applies to wiretaps. That sort of invasion of privacy might well be seen as covered by the enactors’ decision even though telephones did not exist in 1789. We might imagine a conversation in which we explain to the Framers: “In the future, it will be possible for officials to invade people’s privacy electronically without physically entering their dwellings. Would your decision apply to that sort of thing?” And we might plausibly suppose that they would reply, “Of course.”
Suppose, however, that someone proposes that a constitutional provision be interpreted to do something we are reasonably confident the enactors did not contemplate and very likely would not have desired. Someone proposes, for example, that the due process clause be used to invalidate restrictions on abortion. Or that the equal protection clause be used to invalidate traditional marriage laws. And we are confident, perhaps, that the enactors of those provisions would have been startled to learn of these proposals, and would have protested, “Are you serious? Our decision had nothing to do with that sort of thing.” If such “interpretations” had been foreseen, the provisions almost surely would have been reworded to avoid the unwanted results, or would not have been enacted at all.