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05/28/2022

Michael Smith: The Present Public Meaning Approach to Constitutional Interpretation
Michael Ramsey

Michael L. Smith (Glaser Weil Fink Howard Avchen & Shapiro LLP) has posted The Present Public Meaning Approach to Constitutional Interpretation (Tennessee Law Review, Vol. 89, forthcoming 2023) (58 pages) on SSRN.  Here is the abstract:

Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism ultimately fall flat if critics fail to propose preferable alternative to originalism. After all, it takes a theory to beat a theory.

This Article proposes an alternate theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This straightforward alternative has attracted surprisingly little discussion in the originalist literature until Frederick Schauer’s recent article, Unoriginal Textualism, argued for the theory’s feasibility. While Schauer devotes much of his article to the claim that the present public meaning approach is theoretically possible, his discussion of why such an approach is preferable to originalism is limited.

This Article picks up where Schauer leaves off and argues that the present public meaning approach is preferable to originalism. The present public meaning approach to constitutional interpretation is a better means of constraining judges, and leads to judicial decisionmaking that is more transparent and predictable. It also better achieves goals of democratic legitimacy by taking into account modern views on indeterminate, value-laden language in the Constitution and its amendments and by accounting for significant expansions in the right to vote since the founding. Additionally, the present public meaning approach avoids significant implementation obstacles originalism faces, and is more likely to lead to desirable results by better accounting for present circumstances.

This Article does not contend that the present public meaning approach is the best approach to constitutional interpretation. But it is still preferable to originalism—avoiding numerous shortcomings and critiques against originalist methodology, and preferable in light of many normative considerations that originalists claim to honor. Originalists must therefore take the present public meaning approach seriously when defending their theories of constitutional interpretation.

Often, especially as to technical provisions, I think present public meaning doesn't differ that much from original public meaning, which is why (in my view) original meaning originalism is, or should be, heavily textualist. But sometimes it does, and I'm not sure of the justification for letting our basic law be determined by random changes in language.  More importantly, though, I think in many cases the present public meaning isn't distinct from what one thinks the Constitution ought to mean.  Consider "due process of law": does its modern meaning include "substantive" due process?  That question isn't really separable from whether one thinks it should include "substantive" due process. Thus it is not really an objective test.