The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Five questions for a critic of originalism


In today's Boston Globe historian and Boston College law professor Mary Bilder has an editorial criticizing originalism entitled The Constitution doesn't mean what you think it means. In it, she offers a long historical narrative about the Founding into which she interjects her criticisms. Today, my Georgetown colleague and fellow-originalist Lawrence Solum has a blog post entitled Professor Bilder, Please Answer These Questions! in which he separates out, and hones in on, the specific objections she offers.

There is one thing each of these passages from Professor Bilder's editorial have in common. Although she is writing as a historian, and her essay is largely an historical narrative about the Founding, in these passages, she is making explicit or implicit claims about what originalists have said today or in the recent past about the Constitution and how it should be interpreted. Each of Professor Solum's questions are asking her to substantiate these claims about present-day originalists, not her claims about the past. Because these contentions are unsupported by her historical narrative, he asks her to respond and promises to post her answers. Should she choose to do so, I will link to it on the Volokh Conspiracy so you do not miss her responses.

Of course, Professor Bilder is under no obligation to reply to these questions. But, as a legal scholar, she was under some obligation to substantiate these claims in her original piece. Having failed to do so there-perhaps due to the exigencies of space and forum- it seems only fair to provide her the opportunity to do so now. As it currently stands, however, these factual claims about "originalism" and "originalist scholars" are entirely unsupported, as Professor Solum's questions make clear.

With his permission, I reproduce his questions in their entirety.

Question One: You wrote the following:

Today, most originalists contend that a judge should abide by the text's "original public meaning"—a term of art that originalist scholars have written thousands of pages trying to explain.

What is the basis for the page count? Which articles by which originalists scholars are you discussing? I am very familiar with the theoretical literature on original public meaning, but if this claim is correct there is a large body of work that I have missed entirely.

Question Two: The passage quoted above uses the word "trying," implying but not directly stating that the attempts have been unsuccessful. Is that reading correct? What in particular do you believe is unsuccessful about the explications of the concept of public meaning to which you refer? Which specific attempts do you believe are unsuccessful?

Question Three: You wrote the following:

Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.

This claim is inconsistent with public meaning originalism as I understand it, and as public meaning originalism has been defended by scholars of whom I am aware. Which public meaning originalists have argued that the constitution should be read as a modern technical contract? Perhaps in this passage, you meant to refer to another variety of originalism, which is called "original methods" originalism. It is possible that the Boston Globe edited your op/ed so as to eliminate a transitional sentence? Is that what happened?

Question Four: You wrote the following:

In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.

This passage suggests that originalists . . . affirm that the framers believed that each word of the constitutional text "possessed an invariable, sacred meaning." On what do you base this assertion? It is possible that you are referring to two distinct claims made by originalists: One claim is the Fixation Thesis, which claims that the communicative content of the constitutional text is fixed at the time each provision was framed and ratified? When you say "invariable" do you mean to refer to the Fixation Thesis? If so, do you deny that the framers would have expected that the words they used would have been interpreted according to the conventional semantic meanings of the relevant units of meaning (words or phrases) at time they were authored? Or do you believe that linguistic drift (or semantic shift) was anticipated by the framers and hence that they thought that the meaning of the document would change given accidental changes in meaning? I assume that your use of the word "sacred" is for rhetorical effect? If not, what did you mean by "sacred"?

Question Five: You wrote:

Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers.

What do you mean by "literally beyond the capacity and purpose of the framers"? What precisely do you believe it is that originalism requires that is literally beyond the capacity of the framers? One possibility is that you believe that originalists require that the Constitution is fully determinate, answering all constitutional questions. Is that what you mean? If it is, then how do you square that assertion with the originalist theorizing since the late 1990s. In particular, how did your statement take into account the work of Keith Whittington, Randy Barnett, myself, and many others that marks the distinction between "interpretation" and "construction" and recognizes the existence of the underdeterminacy of particular provisions? Perhaps, you believe that all of the constitutional text has radically indeterminate communicative content? Please be specific about the sources upon which you relied for the "originalism requires" part of this assertion.