Michael L. Smith: Originalism and the Meaning of 'Twenty Dollars'Michael Ramsey

Michael L. Smith (University of Idaho College of Law) has posted Originalism and the Meaning of 'Twenty Dollars' (Creighton Law Review, Vol. 56, No. 4, (2023 forthcoming)) (21 pages) on SSRN.  Here is the abstract:

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment’s reference to “twenty dollars” means—both as a matter of original meaning and for interpreters today.

While this appears to be an easy question, I demonstrate that rather than telling modern legal actors what “twenty dollars” means, originalism instead leads to a range of highly divergent possibilities. The original meaning of “twenty dollars”—applied today—may mean anywhere from twenty modern dollars, to a little under four hundred dollars, to just about seven thousand dollars. In doing so, I illustrate high-level debates between originalists and their critics, and how these debates tend to stray away from the needs of actual actors. Originalist appeals to construction and distinguishing semantic and legal meaning are cold comfort to the hapless attorney or judge who just wants to know what “twenty dollars” means. Moreover, if originalism cannot tell modern legal actors what “twenty dollars” means, there’s little hope that it will provide meaningful assistance in resolving questions over broader, loaded terms like “due process,” “cruel and unusual punishment,” “equal protection,” and other provisions that draw the bulk of scholarly attention and constitutional litigation.

Professor Smith suggests the following possibilities (pp. 14-15): 

[1] The present-day value of 18th-century pieces of eight, as determined by expert appraisers or statistical evidence regarding purchases or auctions of Spanish silver dollars dating back to the
founding era and resulting in potential values ranging from $1,000 to $7,000;

[2] Twenty of Spain’s modern units of currency, which works out to twenty euros;

[3] The present value of the amount of silver that needed to be included in founding-era dollar coins, which works out to approximately $370.80;

[4] The modern purchasing power amount of founding era dollars, which works out to anywhere between $400 and $7,000;

[5] Whatever modern reference fits sufficiently with the founding-era “sense” of “twenty dollars,” which may refer to the amount’s founding-era purchasing power, the modern value of an equivalent amount of silver, or other referents that one may seek to connect to the phrase;

[6]  The present referent of the original sense of “twenty dollars,” which refers to a unit of currency that is to be defined by United States law—a value equivalent to twenty United States dollars at the time of interpretation.

It's an interesting puzzle.  I pick [6].  The original public meaning of "dollar" in the Seventh Amendment was the monetary unit of currency of the United States, which Congress had power to define by Article I, Section 8, cl. 5.  [3] seems like a plausible alternative, though.  The others do not.

I disagree with Professor Smith's broader claim that the twenty dollar puzzle undermines originalism as an approach to adjudication.  It may be that the Seventh Amendment is ambiguous in a narrow band (as between 20 current dollars and, at most, $7,000).  But it's not ambiguous as to a much larger category of claims.  A claim of, say, $20,000 in current dollars clearly requires a jury trial.  A claim of $15 does not.  Originalism is not going to give clear answers in every case, but it can give clear answers in many cases.