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02/28/2015

Stephen Matthew Feldman: New Originalism or Eclecticism?
Michael Ramsey

Stephen Matthew Feldman (University of Wyoming - College of Law) has posted Constitutional Interpretation and History: New Originalism or Eclecticism? (28 BYU Journal of Public Law 283, 2014) on SSRN. Here is the abstract:

The goal of originalism has always been purity. Originalists claim that heir methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method -- the approach that reveals the purest constitutional meaning -- is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates that reasonable-person originalism is incoherent at its historical core. As an interpretive method, originalism cannot achieve its stated goal: to identify fixed and objective constitutional meanings. Contrary to originalist claims, historical research uncovers contingencies and contexts. More specifically, the evidence shows that reasonable-person originalim is historically unjustified. Early in the nation's history, neither lawyers nor laypersons would have suggested that constitutional interpretation should be based on the views of a hypothetical reasonable person. Second, the Article demonstrates that the historical evidence instead supports an alternative conception of constitutional interpretation. In the early decades, numerous Americans -- including framers, Supreme Court justices, and constitutional scholars -- used an eclectic or pluralist approach to constitutional interpretation. Depending on the case, an eclectic interpreter considered a shifting variety of factors, including original meaning, framers' intentions, practical consequences, and judicial precedents.

Larry Solum comments at Legal Theory Blog:

As Feldman recognizes, I do not invoke the reasonable person in my defense of public meaning originalism.  The best understanding of "public meaning" does not require the invocation of a hypothetical "reasonable person."  For example, in order to determine the public meaning of a word or phrase in 1787, we need to examine the relevant linguistic facts--patterns of usage at the time.  The best tool for such an investigation is corpus linguistics, which allows the examination of many instances of usage.  To the extent that the "reasonable person" could any role in such an investigation it would be purely as a heuristic (a way of thinking about the problem), and not as a normative standard.

That sounds right to me.