04/07/2017

The Privileges or Immunities Clause and 1523, Part I: “Nondiscrimination for Me, but not for Thee”?
Chris Green

Rather than the Gorsuch confirmation and Hively opinion from the en banc Seventh Circuit, the big legal news in my home state this week was the Fifth Circuit oral argument in two consolidated cases concerning the constitutional challenges to Mississippi House Bill 1523, which became law a year ago, but has been embroiled in litigation since then.  The details of the law, and the Equal Protection and Establishment Clause challenges to it, are complicated, but I wanted to focus on two issues in the case as they relate to the original meaning of the Fourteenth Amendment: selectivity in the application of an antidiscrimination norm, and stigmatic injury unrelated to other impact on civil rights.

As I read the Fourteenth Amendment, religious and other equality claims under the Fourteenth Amendment should be decided under the Privileges or Immunities Clause. The Due Process Clause is about the rule of law, not the content of the substantive rights protected by the law, and the Equal Protection Clause is about literal protection, not equality in general.  Of course, the Supreme Court has officially disagreed about the Privileges or Immunities Clause since 1873, but it has at the same time been willing to use evidence related to the Privileges or Immunities Clause in both its equality cases (relying on the first Justice Harlan’s citizenship-based reading of equality in Plessy and other cases) and in basic-rights cases (where the Court used Privileges-or-Immunities-Clause evidence in cases as recent as McDonald in 2010 and as old as Allgeyer in 1897).

More after the jump.

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Seth Barrett Tillman on Ex Parte Merryman
Michael Ramsey

From the New Books Network, a podcast with Seth Barrett Tillman on Ex Parte Merryman, based on his article Ex Parte Merryman: Myth, History, and Scholarship (224 Military Law Review 481 (2016)).  [Not actually a book but apparently they made an exception.]  Here is the introduction to the podcast:

Seth Barrett Tillman has written “Ex Parte Merryman: Myth, History and Scholarship,” an article about the famous case that is popularly thought to demonstrate a conflict between the President and the federal courts during the American Civil War. Tillman’s article is an effort to revise the standard historical understanding of the case called Ex Parte Merryman. In the spring of 1861, just as the hostilities had begun in the Civil War, famously issued an order to the U.S. Army granting army officials discretion to suspend the writ of habeas corpus if resistance or treasonous activity were encountered in Union territory. That spring, as soldiers poured into the Washington, D.C. area through Maryland, the Army was confronted with popular protests and violence by civilians. One suspect was John Merryman, a young man from a prominent Maryland family. Merryman hired lawyers to seek his release via the traditional method of asking the federal courts for an order to release Merryman pending his trial. However, Merryman was not initially released and was confined in Ft. McHenry, a military base near the port of Baltimore. The traditional account of the case portrays Supreme Court Chief Justice Roger Taney as heroically seeking to vindicate the rights of a civilian prisoner wrongly held by the military and Lincoln as defying an order to comply with the Constitution.

In this podcast Professor Tillman, a lecturer in the Department of Law at Maynooth University in County Kildare, Ireland, discusses his arguments that the traditional account of the Merryman case is built upon multiple myths. If Tillman’s view of the case is correct, it holds the potential for overturning our understanding of this important period in constitutional history and civil-military relations.

The Constitution and Syria (Again)
Michael Ramsey

Well, so much for this article (in which I argue that President Obama's hesitation to use force against the Syrian government without congressional authorization could be seen as a fist step toward restoring the original allocation of war powers).

At Just Security, Ryan Goodman collects quick reactions from a range of scholars, including three with an originalist orientations (me, Saikrishna Prakash and Louis Fisher).  Here's what I said:

President Trump’s military action against the Syrian government is unconstitutional under the Constitution’s original meaning. The Framers understood the declare war clause to require Congress to approve attacks on foreign nations. That the goals of the strike are laudable, that quick action may have been needed, or that vital national security interests are said to be at stake does not change the Constitution’s basic rule. The framers did not want the President to have unilateral power to involve the U.S. in military conflict.

President Trump may argue (as President Obama did with his 2011 Libya intervention) that the action is too small to count as “war” for constitutional purposes and so approval is not required. But that is not how the Framers saw it. In the immediate post-ratification era, even low-level uses of force—such as the 1798 “Quasi-War” with France and the 1801 naval action against Libya—were widely thought to require congressional approval.

President Trump’s actions are regrettable from a modern constitutional perspective. President Obama declined to use force against the Syrian government without congressional approval. He was criticized for this hesitation, but it was the right call, constitutionally speaking. It established a precedent (somewhat balancing Obama’s own unilateral action in Libya) in keeping with constitutional limits. Unfortunately that precedent is undermined by the current action, which reinforces the modern (and unconstitutional) idea of presidential unilateralism.

The article linked above has a longer but still fairly quick sketch of my originalist arguments against presidential war powers, with citations to longer works and applications to modern situations.  See also this excellent analysis from Ilya Somin: Large-scale military intervention against Assad requires congressional authorization

Unfortunately Professor Goodman did not find anyone to make an originalist case for the Syria strikes.  I'll post a link once I see one.

Randy Barnett Recounts Some of this Week's Originalism Debates
Michael Ramsey

It has been a big blogging week for originalism.  Randy Barnett covers the highlights: Originalism teachable moment update (with many links, including to this blog, which I appreciate).

At Legal Theory Blog, Larry Solum has added this lengthy comment (on Professor Gienapp's critique of originalism).  From the conclusion:

I am open to the argument that the communicative content of the text of the United States Constitution is epistemically inaccessible to anyone who does not immerse themselves in the conceptual world of the late eighteenth-century, but I do not believe that this argument can be made on the basis of a priori assumptions about the accessibility of the past in general.  The conceptual world of the late Eighteenth Century is closer to our conceptual world than is the conceptual world of Justinian's era.  The legal texts of Justinian's era are in Latin, not English; Justinian's Code was drafted from 529 to 565 well more than a thousand years before the drafting the United States Constitution.  The text of the unamended United States Constitution was written in the American English of its era; although there has been a considerable amount of linguistic drift or semantic shift, approaching founding era texts is not like reading Old English ("ond þa cyningas begen ofslægene, ond sio laf wiþ þone here friþ nam) or Middle English ("the hooly blisful martir for to seke").  For example, I have a fairly high degree of confidence that I can discern the communicative content of sentences like, "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."  To be clear, that does not mean that I fully understand the reasons for which this provision was adopted or the effects that it was intended to produce: what I claim to be able to grasp is the communicative content of the text.

Agreed.

Also, Professor Barnett's round-up doesn't include his own response to Erwin Chemerinsky's latest attack on originalism: Not an April Fools’ Day post: Another contradictory attack on originalism.  Among other things, he has this response to the claim, recycled by Dean Chemerinsky, that originalism allows segregation:

... [T]he 39th Congress [did not] racially segregate DC schools, which were already segregated. Indeed, after the 14th Amendment was ratified by the states, the Republican majority of both houses voted in favor of a civil rights measure that would have made state school segregation illegal. That provision was not included in the Civil Rights Act of 1875 (which the Supreme Court eventually invalidated) because of supermajority procedural requirements in both the House and the Senate–the sort of supermajority requirement Dean Chemerinsky is now urging Senate Democrats to employ.

Stanford law professor Michael McConnell laid out the facts here over 20  years ago in 1995 and, in his critical reply, Harvard legal historian Michael Klarman does not dispute any of these facts. Instead, he offers methodological arguments about originalism. Revealingly, Klarman’s response is entitled Brown, Originalism, and Constitutional Theory (I cannot find a free link but you can read the synopsis). McConnell responds persuasively to Klarman here; and another reply by McConnell to a different critique is also interesting.) You can read the exchange for yourself and decide who has the better of the factual dispute.

It's been a very busy week.

04/06/2017

More on Hively v. Ivy Tech
Michael Ramsey

David Weisberg comments:
 
Prof. Green has already commented on Judge Posner’s provocative concurring opinion in Hively v. Ivy Tech Community College, but I would like to approach it from a different angle.  Judge Posner asserts: “Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word ‘speech’ in the amendment embraced flag burning or other nonverbal methods of communicating.”  I believe this is incorrect; there is indeed an indication that the framers thought that the First Amendment would extend to all methods of communicating.
 
In relevant part, the amendment provides: “Congress shall make no law…abridging the freedom of speech, or of the press[.]”  Focus, to begin, on the freedom of “the press”.  It should be obvious to any fair-minded person that “the press” is in this context a synecdoche—that is, it is a reference to a species that is meant to represent a genus.  No one, not even Judge Posner, could seriously contend that the drafters sought to protect only written material produced on a printing press, while leaving hand-written material unprotected.
    
So, the freedom of “the press” is much more expansive and extensive than a narrowly literal reading of the amendment would support.  To my mind, that is indeed an indication that freedom “of speech” also should be understood, not narrowly or literally, but as broadly as reasonably possible.  It is true that burning a flag is not “speech” in the usual sense.  It is, however, “speech” in an unusual sense: that is why flag-burning is often referred to as “symbolic speech”.  Similarly, it is true that a hand-written poster is not “the press”, or even a product of “the press”, in the usual sense.  If “the press” must necessarily be understood expansively to represent every kind of written communication, I believe that “speech” can best be understood in a similarly expansive sense to represent every kind of communication—including “symbolic speech”—that is not in writing.

Kiel Brennan-Marquez and Andrew Tutt on the Trespass Test
Michael Ramsey

At Balkinization, Kiel Brennan-Marquez and Andrew Tutt: Give the “Trespass” Test (and Judge Gorsuch) a Chance.  From the introduction:

In 2012, when the Supreme Court held in United States v. Jones that police may not engage in prolonged GPS surveillance of a car on public streets without a warrant, many scoffed. Not at the outcome, which was widely applauded, but at the reasoning: the majority opinion, written by Justice Antonin Scalia, hinged on the fact that when the police installed the GPS device on Jones’ car, they committed an act of “trespass.”  Scalia’s logic was proudly originalist:  Trespassing to obtain incriminating information was forbidden when the Constitution was ratified; hence, it is forbidden today.  By resolving the case that way, the Court sidestepped the privacy questions raised by surveillance technology like GPS and—as Justice Alito’s concurrence put it, voicing skepticism shared by many observers—“attache[d] great significance to something that most would view as relatively minor.” 
 
Fast forward five years, and Jones  has once again surfaced in the public conversation about privacy and surveillance—this time, because of Judge Neil Gorsuch’s confirmation hearing. Gorsuch, himself an originalist, has made no secret of his support for the Jones holding.
 
And further on:
 
This proposition—that even as the world surrounding law changes, the core principles of law stay fixed—is central to originalist reasoning. We have no ambition here to resolve grand debates about the merits and demerits of originalism writ large. What we do wish to point out, however, is that a commitment to fixed principles of law, though often associated with efforts to limit the scope of fundamental rights, can also operate in the service of fundamental rights. 
 
...
 
To see what we mean, one need only look to United States v. Ackerman, a recent 10th Circuit opinion written by none other than Judge Gorsuch. As relevant here, the question in Ackerman was whether a warrant is required for law enforcement to open an email that has been flagged by an internet service provider (“ISP”) as likely to contain child pornography. The government argued that the answer should be no—because, among other reasons, people have no reasonable expectation of privacy in emails they have already shared with an ISP. 
 
Rather than indulge that argument, Judge Gorsuch opted to apply the Jones test, which, he thought, “pretty clearly” forbids the “warrantless opening and examination of . . . private correspondence.” In reaching this conclusion, Judge Gorsuch analogized the opening of an email to the opening of a private letter, both of which “qualify as exactly the type of trespass [] that the framers sought to prevent when they adopted the Fourth Amendment.” To be sure, whether opening an email amounts to a literal trespass (akin, say, to tampering with a parked car) is not self-evident; it’s a thorny and interesting question.  But Judge Gorsuch sidestepped that question by pointing out that in the 18th century, the common law went to great lengths to protect individual dignity in the face of state power.  That simple principle was the both the beginning and the end of the inquiry. 
 
Cases like Ackerman complicate the idea, common in some media coverage of the confirmation process, that a judge’s penchant for constraining his legal reasoning to the application of very old principles tends to stunt the recognition of new rights. In some cases, the use of very old principles can have the opposite effect. They can help judges abstract away from the technological details and focus on what actually matters: whether the state has exceeded the bounds of its legitimate authority. In some domains, originalists do better—or at least, just as well—with this question as their progressive counterparts.

04/05/2017

Posner on Originalism, Founders' Beliefs, and Flag Burning
Chris Green

Judge Posner's separate opinion yesterday in the Hively v. Ivy Tech case at the Seventh Circuit has gotten significant attention for Posner's open embrace of taking some of the "burden of updating old statutes" away from Congress. I wanted to focus instead on two particularly bad mistakes Posner makes in dismissing originalist interpretation.

First, Posner mischaracterizes originalism as requiring the adoption of all of the framers' beliefs:

A diehard 'originalist' would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute.

Virtually every originalist, however, distinguishes meaning from application--as I would put it, textually-expressed sense from tangible reference in the world. Virtually every originalist other than the late Raoul Berger would therefore limit the binding force of "what was believed in 1964" to those beliefs relevant to meaning--founders' analytic judgments, not their synthetic judgments, as I have put it. What was believed about the relevant populations of Maryland and North Carolina in 1787 is not binding today in interpreting Article I, section 2, clause 3: the original meaning fixes only a function from possible worlds to outcomes, and we must determine our actual possible world and then plug it into that function to determine constitutional (or statutory) requirements today. In December, I pointed out that Posner and his co-author Eric Segall have steadfastly refused to make this distinction (or acknowledge that originalists make it, or pay attention to the way in which they make it). As I explained then, "the relevance of present facts does not entail the irrelevance of historical facts." Posner's continuing insistence on attacking a strawman version of originalism tells us something significant about his ability to respond to the genuine article.

Second, Posner makes a bad historical blunder in one of his attempted reductio ad absurdums of originalism. At the oral argument in Hively, Posner brought up the case of interracial marriage, and I noted at the time that he seemed not to have yet encountered David Upham's work on the subject (presented at the 2014 Originalism Works-in-Progress Conference). Posner does not press the interracial-marriage reductio in his opinion yesterday (perhaps because his clerks or other judges told him about Upham's work, perhaps for other reasons), but he does mention the issue of flag burning, which Posner also brought up at oral argument. He writes, without citation of any kind,

Burning a flag is not speech in the usual sense and there is no indication that the framers or ratifiers of the First Amendment thought that the word “speech” in the amendment embraced flag burning or other nonverbal methods of communicating. 

When Posner says "there is no indication" that the First Amendment's original meaning included non-verbal communication, he may mean to refer only to the briefs in the case, which of course concern Title VII, not the First Amendment. But it would not take much Googling to find Eugene Volokh's nicely-titled article from eight years ago, Symbolic Expression and the Original Meaning of the First Amendment. Posner said famously last summer that "I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation." He shortly later issued a caveat that he rejected common-law constitutionalism, but without explicitly embracing the importance of spending a few moments verifying historical claims about the Constitution before inserting them into F.3d. It would be good to see a fuller mea culpa from Judge Posner on this issue. It is distressing to see judges resolving important social issues while ensconced in a cognitive bubble so well-insulated from scholarship.

UPDATE (from Michael Ramsey):  Josh Blackman has some detailed (and harsh!) analysis of the opinion here and here.

Gienapp on Barnett on Gienapp on Originalism
Michael Ramsey

Jonathan Gienapp responds (at length) to Randy Barnett's (lengthy) critique of Professor Gienapp's (lengthy) critique of New Originalism: Knowing How vs. Knowing That: Navigating the Past (a lot of words in these posts, all worthwhile).  I think this is the core of it:

The key is not that meaning needs to be put in context (everybody thinks that), it is, instead, figuring out which context and why.

Those questions can only be answered by first determining just how different the past really was from the present. Historians believe that the past is far more foreign than champions of Originalism 2.0 do. Because they believe the past is so foreign, historians insist upon a much wider and more far-reaching brand of translation than originalists think is necessary. And because they demand this kind of translation, historians call for a much deeper form of contextualization than originalists do.

Everything then begins with the foreignness of the past. To understand the past we must, as the historian Robert Darnton once articulated it, “put back together symbolic worlds that collapsed centuries ago.” Where this seems to become a problem for originalist-historian debates is not in discussing the “past” in broad terms, but the past period that is most immediately relevant to originalist inquiry—the American Founding. The unwitting assumption upon which most originalist writings are based is that the era of the American Founding is rather easily accessible, that it is not that different from the conceptual world in which we currently reside. After all, not only did Founding-era Americans speak English and seem to draw upon many of the same concepts that still animate us today—such as “liberty,” “rights,” “happiness,” or “the state”—they also inaugurated many of the political and constitutional traditions in which we still find ourselves. Professor Barnett betrays this assumption clearly when discussing lawyers’ expertise in reading legal texts: why, he asks, would historians be better equipped to read a law enacted in the eighteenth century when they are unable to read one enacted in the twenty-first? Is Professor Barnett saying, generally, that as a lawyer he is always better equipped than other scholars to read legal texts—that he is better armed to decipher Qing dynasty legal texts than Chinese historians; or local civil suits in colonial West Africa than African historians and anthropologists; or the Justinianic Code than Byzantine historians? I assume not. So most legal texts produced in other times and places are actually not subject to the legal expertise of American lawyers. His point must simply be that those produced at the time of the American Founding are. The only justification for this distinction could be that those late eighteenth-century American texts are written in a conceptual vocabulary that is readily accessible to an American lawyer in a way that Qing dynasty legal texts or colonial West African civil suits or the Justinianic Code are not. That is the argument Professor Barnett, and most other originalists who have weighed in on this debate, are really making.

Here is the critical divergence, because historians of the Founding era (like historians generally) adamantly reject this claim. ...

I'm struck by how uncompromising this is.  Is Professor Gienapp really saying that no part of the Constitution can be understood as the Framers understood it, except by historians with the kind of training he describes?  That seems implausible.  I feel pretty confident that the Framers understood that under the Constitution each state would select two Senators regardless of population.  And with just a little background reading, I can get an (admittedly superficial) understanding of why they thought this was a good idea (or at least were willing to agree to it) -- at least enough of an understanding to be confident that I am reading their text as they would.  I assume he would not disagree.

But if the original meaning of some parts of the Constitution are easily accessible in this way, isn't it likely that the original meaning of some other parts are somewhat less accessible, but still clear enough to non-historically-trained scholars upon close examination?  It's not likely that the Constitution contains only two categories of provisions, those that can be readily understood by anyone upon just a casual glance and those that cannot be understood by anyone but PhD-trained historians.  More likely, there is a spectrum of difficulty, with historians' tools becoming increasingly useful and perhaps necessary as the questions become more difficult.  And historians may also be able to point out situations where the text seems clear enough on its face but with proper understanding of the context is in fact more difficult.

So I think legal academics can accept the value of historians' contributions without abandoning their project.  My vision is more cooperative than all-or-nothing.

And yet, one more thought.  Professor Gienapp's arguments are very abstract.  He does not give examples of parts of the Constitution that originalists misunderstand because they do not have historical training.  I'm sure there are some, but it would be useful to have concrete examples.  It is of course an impressionistic observation, but I can't think of any example in my field (foreign affairs law) where I have come to one conclusion and then had a subsequent historian's account show me why my view was erroneous.  (I would welcome this experience).  In part this is because pure historians don't actually do much "applied" originalist scholarship -- that is, investigating what a particular phrase meant in the founding era.  (I wish they did more).  In part it's because I find, generally speaking and with due acknowledgments of exceptions, that even in dealing with relatively specific topics historians' accounts tend to stay fairly abstract and not grapple with the actual words of the text.  In any event, it seems to me that this debate would be better advanced by historians doing more originalism to illustrate how their method changes the analysis.

(Via Alfred Brophy at The Faculty Lounge.)

04/04/2017

The Take Care Clause and the Equal Protection Clause
Mike Rappaport

I was talking about the Take Care Clause today and I realized that there was an important connection between the original meaning of two clauses I had never previously recognized: the Take Care Clause and the Equal Protection Clause.  Most people don’t see much of a connection, but there is an important connection as to the original meaning: they are both about prohibiting executives from not enforcing the law.

While the modern meaning of the Equal Protection Clause is that it protects against unequal laws, the probable original meaning is different.  The Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”  The protection of the laws had a traditional meaning that referred to the right of people to be protected in their rights by the law – that is, something like the remedial aspects of the laws as well as the actions of the government in protecting them.  See here and here.   For example, William Blackstone wrote:

The remedial part of a law is so necessary a consequence of the former two [i.e., the declaratory and directory parts], that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting these rights, when wrongly withheld or invaded. This is what we mean properly, when we speak of the protection of the law.

The Clause, then, prohibited states from providing this protection unequally – from protecting whites, but not blacks.  This accords with one of the core purposes of the 14th Amendment, which was to prohibit sheriffs from ignoring lynchings of blacks by whites.

With this understanding of the Equal Protection Clause, its connections with the Take Care Clause should be evident.  The Take Care Clause is about obligating the President to faithfully enforce the laws and clearly it requires that the President not ignore law violations of the sort that the Equal Protection Clause was designed to address.

Thus, these two clauses were about the obligations of executives – the federal and the state executives.  In both cases, the primary focus was on constitutionally obligating the executive to enforce the law and not to ignore law violations.

Clearly, then, American history (and English history which it drew upon) recognized the crucial importance of executives enforcing the laws.  Of course, these struggles are not just part of history but continue.  I suppose we will always face them.

More on Professor Bilder and Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: The Constitution’s Creation Is Compatible with Reading It as a Legal Document.  From the introduction: 

Mary Bilder, a distinguished legal historian, has written an oped arguing that the historical context and drafting of the Constitution shows that originalism is not a suitable interpretive approach for its text.  Larry Solum has already asked her five probing questions about her understanding of originalism.

Here I want to focus on her historical claims and in particular her denial that the Constitution should be interpreted as a legal document.  To be sure, not all originalists believe that the Constitution is written in the the language of the law, but Michael Rappaport and I do.  Bilder’s exposition of an originalism that follows the Constitution’s legal meaning begins by attacking a straw man.   She writes: “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.”

The Constitution is not a contract or, as Chief Justice John Marshall noted, a code, but that does not mean it cannot be a legal document, interpreted with legal rules appropriate to a constitution, as were state constitutions at the time. And Mike [Rappaport] and I have recently shown that text of the Constitution—its legal terms and its presupposition of legal interpretive rules– provides powerful evidence that it was written in the language of the law. But even if Bilder does not consider the text relevant historical evidence— which would be a strange position for a legal historian—her arguments from the context of its drafting are weak.

Also, at Legal Theory Blog, Larry Solum has this lengthy response to a post  by Brian Leiter on his "five questions" post, including this point:

Why are originalists "sensitive" to what they understand to be misrepresentations by nonoriginalists scholars in public political debate?  I think that Leiter is correct that originalist scholars do react by objecting when they read nonoriginalists misrepresenting "originalism" to the general public.  I can only speak for myself about the reasons for this reaction.  In my case, I am frustrated that nonoriginalists frequently say things about originalism that no one who has read the scholarly literature would possibly assert as true of contemporary originalism.  The clearest example is the oft-repeated assertion that originalists attempt to "channel Madison" and attempt to resolve contemporary constitutional disputes by asking, "What would Madison do?"

At the Faculty Lounge, Steve Lubet has a brief post on one point in the Bilder-Solum exchange: 

Thus, referring to a theory as “trying to explain” [As Professor Bilder says of scholars of original public meaning] does not imply failure, but rather recognizes that the scholarly enterprise is continuous.  There are no definitive answers even in the hard sciences, much less in law and the social sciences.  Originalism itself has gone through changes, moving from “original intent” to “original public meaning,” as each successive iteration tries to improve on earlier conceptions.

I have never written anything that did more than try to explain an idea, and I have never read anything in scholarship that provided a conclusive answer.  As a historian, I am unconvinced that the "original public meaning" of constitutional provisions can be recaptured with the certainty claimed by Solum and Barnett, but I am open to persuasion.  Let me suggest that Bilder wrote her oped, at least in part, in the same spirit.

As a quick aside on this point, I don't know that Professors Barnett or Solum claim that the original public meaning of large numbers of constitutional provisions can be recaptured with a high degree of certainty.  On the other hand, surely the original public meaning of some constitutional provisions can be recaptured with a very high degree of certainty.  For example, we can be pretty sure that the original public meaning provided for one President, not two; that each state was entitled to two Senators regardless of population; and that Representatives were elected for two year terms.  Most originalist scholars and judges, I would guess, see the matter as something of a spectrum, with some applications of some provisions being relatively clear, others somewhat less so, still others increasingly challenging, and still others pretty opaque.  It does not seem useful to me in this debate for originalism skeptics to maintain either that originalism claims certainty about the original meaning of all provisions (because often it does not) or that certainty about the original meaning is categorically impossible (because certainty, or at least near certainty, is at least sometimes possible).

Finally, here is Randy Barnett on the exchange, at Volokh Conspiracy.