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06/11/2022

James Cleith Phillips: Which Original Public?
Michael Ramsey

James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) has posted Which Original Public? (Chapman Law Review, Vol. 25, No. 2, 2022) (16 pages) on SSRN.  Here is the abstract:

Original public meaning originalism seeks to know what the Constitution would have meant to an ordinary person at the time a specific provision was enacted. So originalist scholars tend to look to see what the Constitution’s words would have meant to an ordinary, average, or competent user of American English at the time a specific constitutional provision was adopted. In District of Columbia v. Heller, however, Justice Scalia’s majority opinion took a more specific view of exactly who qualified as the ordinary person of interest. At one point Heller declares that the “Constitution was written to be understood by the voters.” Yet in the very next sentence, Heller notes that “meanings that would not have been known to ordinary citizens in the founding generation” are excluded. However, these are not the same populations—or, as linguists would say, speech communities —in two ways. First, many citizens could not vote, with voting limited in some states based on requirements such as property ownership, and with few women, able to vote. Second, some voters were not “ordinary,” either generally or in their language use. Most, if not all, of the Founders would not fit this description.

This raises an important methodological question for original public meaning originalism. Performing original public meaning originalism requires looking at how the general public used and understood language. But which portion of the public is the correct one for determining the Constitution’s meaning? Heller proposes two possibilities: voters and “ordinary” citizens. If we go with the latter group, how would we define “ordinariness?” Yet there are other possibilities besides these two populations. What about all citizens, regardless of their “ordinariness?” Alternatively, we could look to the Constitution itself. Its preamble declares that “We the People” ordained and established it. Who would have been understood to be “We the People” in 1789, and are they the proper public for originalism’s inquiry? One could imagine other publics, such as everyone permanently in the United States, regardless of their ability to vote or citizenship status. Originalism has been theoretically fuzzy as to who qualifies as the original public from which meaning must be sought. This essay seeks explore the possibilities in hopes of further theoretical refinement to enable more focused originalist methodology.