A Note re: Fulton v. City of Philadelphia
David Weisberg
Regarding the Court’s recent decision in Fulton v. City of Philadelphia, I would add one point to the ongoing conversation. In his concurring opinion, Justice Alito takes pains to determine “the normal and ordinary” meaning the words “prohibiting” and “the free exercise of religion” had when the First Amendment was adopted. He concludes: “These words had essentially the same meaning in 1791 as they do today.” (Alito slip op. 23-24.) How does he reach that conclusion? He primarily relies on Dr. Johnson’s dictionary published in 1755 (together with other 18tthcentury literary materials), and he concludes that Dr. Johnson’s definitions for those words are very similar to the definitions we would assign to them in 2021. (Slip op. 24.) Justice Alito doesn’t even refer to contemporary dictionaries; he implicitly relies on the understandings of competent English speakers today. (Slip op. 25.)
But Justice Alito misses completely the obvious fact that, if the meanings of words in the First Amendment are uncertain because the amendment was adopted in 1791, then the meaning of the words in Dr. Johnson’s 1755 dictionary should be even more uncertain. Thus, Justice Alito’s opinion presents a classic exemplar of what I have identified (here) as the Paradox of Originalism. The originalist’s reliance on literary materials that are roughly contemporaneous with provisions in the Constitution necessarily generates an infinite regress because, if the meanings of the words in a provision from 1791 must be ascertained by consulting roughly contemporaneous literary materials, then the meanings of the words in those roughly contemporaneous literary materials must be ascertained by consulting other roughly contemporaneous literary materials, and so on. Infinite regresses are nasty things that always should be avoided. I find it ironic that Justice Alito, in criticizing Justice Scalia’s opinion for the majority in Employment Division v. Smith, praises Justice Scalia’s opinion for the majority in Heller v. District of Columbia as “a model of what a reexamination of the Free Exercise Clause should entail.” (Slip op. 21.) The Heller opinion is itself shot through with instances of the Paradox.
There is a fundamental difference (too often overlooked by originalists) between a rebuttable presumption that the words and phrases in the Constitution all might have time-dated meanings that differ from their current meanings, and a rebuttable presumption that the words and phrases in the Constitution all might have meanings that are identical to their current meanings. The former presumption generates the Paradox and its accompanying infinite regress; the latter does not. Why any method of constitutional interpretation grounded on a rebuttable presumption that the words and phrases in the Constitution all might have meanings that are identical to their current meanings should be called “originalism” is a mystery to me. But if “originalism” begins with the contrary rebuttable presumption, it generates an infinite regress.