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Perry Dane: The Nagging in Our Ears and Original Public Meaning
Michael Ramsey

Perry Dane (Rutgers Law School) has posted The Nagging in Our Ears and Original Public Meaning (Marquette Law Review, forthcoming) (61 pages) on SSRN.  Here is the abstract:

The debate over how to understand the meaning of legal texts once pitted intentionalism against a variety of other views united by the conviction that a legal enactment takes on a meaning not reducible to anybody’s mental state. Both these approaches are supported by powerful intuitions. This Article does not try to referee between them. Instead, it takes aim at a third set of views – theories of “original public meaning” – that in recent decades has upended the traditional debate and has now become gospel for the new majority on the United States Supreme Court.

The method of original public meaning has a distinct, deadly, bit of intractable incoherence: It is, uniquely, largely useless in interpreting the meaning of contemporaneous legal enactments. If we, today, are trying to figure out the meaning, not of a provision enacted years ago, but of a text enacted today or recently, then looking to original public meaning will usually be a circular, empty, effort. After all, we – the interpreters of a contemporaneous text – are the original public.

This hole in the fabric of original public meaning theory is roughly analogous to the chasm at the heart of variants of predictive legal realism. Just as defining the law as a prediction of what judges will do is of no help to judges themselves in deciding what the law is, defining the meaning of the law by reference to the views of the original public is of no help to the original public in deciding what the meaning of the law is.

That small hole ends up unraveling the entire fabric of original public meaning. If the original public cannot look to original public meaning to decide the meaning of a contemporaneous legal texts, it must have some other way to determine legal meanings. The original interpreters of older texts were readers, just like us. They had a way of reading contemporaneous texts, as do we. We can conclude that they applied their own method incorrectly. We can also decide that our way of reading – which continues to whisper in our ear even when we read older texts – is better suited to the task of understanding those texts.