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09/02/2019

Re Original Meaning in the Faithless Electors Case
David Weisberg

In a paper published on SSRN entitled “Originalism is Dead…Long Live Identicalism!”, I presented what I called the Paradox of Originalism:

If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

A few minutes of reflection will confirm that the Paradox is self-evidently true. 

The Tenth Circuit recently held, by a 2 to 1 decision in Baca v. Colorado Department of State (Judge Carolyn B. McHugh for the majority), that Colorado cannot bar a presidential elector from voting for someone who did not win a majority in the State [see here]. The opinion relies heavily on “historical textualism” or “original-public-meaning originalism,” long associated with the late Justice Antonin Scalia.  The opinion is a perfect exemplar of the illogic that flows from a failure to recognize the Paradox.

The case arises out of the 12th Amendment, adopted in 1804.  The majority asserts that the meanings of the terms “elector,” “vote,” and “ballot,” as used in the amendment, must be ascertained.  The majority continues: “Therefore, we look to contemporaneous dictionaries to understand the meanings of the words used in the Constitution.”  Judge McHugh then identifies five dictionaries published contemporaneously with the 12th Amendment, and she then analyzes the definitions they provide for the three key words.

What Judge McHugh fails to note, however, is that the definitions provided in those contemporaneous dictionaries were published either before or no later than two years after the 12th Amendment was adopted.  If, therefore, the antiquity of the amendment makes its meaning questionable, then the antiquity of those dictionary definitions makes their meaning questionable.  (See, the Paradox.)  The intellectually-consistent, conscientious originalist is bound to use the identical methodology to ascertain the meanings of the words in the contemporaneous definitions, and then to ascertain the meaning of the words in those further definitions, and then etc.  An infinite regress yawns.

As I have argued elsewhere (here and here), there is no reason whatsoever to presume that the words in the Constitution or its Amendments have original, time-dated meanings that differ from their meanings today.  What is more, a few hours spent perusing today’s Oxford English Dictionary, with particular focus on the etymological entries accompanying each definition, will convince any open-minded person that, in fact, all of those words had meanings in 1788 or later identical to their current meanings.  (The meanings of phrases in the Constitution is a different matter.) 

To avoid an infinite regress, one must presume that the original meanings of the words in the Constitution are identical to the current meanings.  No serious student of the Constitution should knowingly employ a methodology that inevitably produces an infinite regress.  The Paradox can be ignored, but it cannot be refuted.