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James Macleod: Finding Original Public Meanings (Updated)
Michael Ramsey

James Macleod (Brooklyn Law School) has posted Finding Original Public Meanings (51 pages) on SSRN. Here is the abstract: 

Textualists seek to interpret statutes consistent with their “original public meaning” (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute’s terms at the time of their enactment? But as the Supreme Court’s decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn’t preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissent disagreed vehemently over the statute’s bar on discrimination “because of sex” — each side claiming that OPM clearly supported its interpretation. How can textualists’ OPM inquiry yield such divergent conclusions?

This Article introduces a new “applied-meaning-experiment” method to answer that question and develop the theory of textualism. The method asks ordinary readers to apply the relevant statutory language in context, under experimental conditions that minimize the effect of potential biases or differences between enactment-era and present-day usage. For Bostock, the applied-meaning-experiment method reveals that the majority was right: an “ordinary reader” at the time of Title VII’s enactment would have understood that it barred LGBT discrimination.

The insights from the applied-meaning-experiment method, however, extend far beyond the controversy in Bostock. In other contexts where textualists disagree over OPM, the method sheds light on how ordinary readers would have understood statutory terms at the time they were enacted. More importantly, the method helps diagnose why textualists might disagree about OPM in a given case. Textualists might lack probative evidence of OPM; but they might also implicitly disagree about what they’re looking for. Specifically, inquiry into actual reader understanding highlights two choices textualists inevitably make when determining a given term or phrase’s OPM: (1) the type of question whose answer would reveal the reader’s relevant “understanding,” and (2) the types of extratextual information that the reader would treat as relevant to answering it. To the extent that textualists have considered either question, they have done so inconsistently, without realizing what they are doing. By confronting each question directly, the applied-meaning-experiment method helps build out the theory of textualism in a way that’s needed in order for textualism to be a coherent and normatively attractive theory of interpretation.

UPDATE: At Legal Theory Blog, Larry Solum says "Highly recommended."