The Right Coast

July 19, 2005
Original Intent and Original Meaning
By Mike Rappaport

Stanley Fish, of all people, defends originalism in the New York Times. Amazing. Fish makes an arguement for original intent that suggests that it is the only meaningful way to engage in interpretation. I am quite familiar with this type of argument, which is often employed by colleagues Larry Alexander and Sai Prakash.

Jim Lindgren, at the Conspiracy, responds to the argument with the following powerful discussion:

While Fish says there is no alternative to looking to the intent of the author, there is an alternative, indeed, what might seem to be a better alternative: looking to the intent of the enactors, signers, and ratifiers. OK, so Fish might be willing to accept that move, perhaps by revising the idea of the "author" to mean not the author of the language but rather the enactors of the statute or Constitutional provision.

Yet that simple move changes the analysis considerably. Once you have hundreds or thousands of enactors or ratifiers, then you are usually talking about the public meaning of words at the time, not the idiosyncratic private meanings of the man or woman who drafted the language. Now you are in the realm of "original meaning originalism," not "original intent originalism" which Fish posits as the only form of interpretation.

Nonetheless, some original meaning originalists will allow idiosyncratic meanings to trump the usual public meaning at the time if that idiosyncratic meaning was publicly discussed and probably agreed upon (or presumably if legal terms of art are used that differ from ordinary public meaning, e.g., "under color of official right"). Where such idiosyncratic meanings were not discussed publicly or where searching for them might lead to more error than not searching for them, for some people (not me) "textualism" might be a crude shorthand label for looking to the meaning intended by the enactors and ratifiers. Given the cooperative enterprise of enactment or ratification, their intention is very likely to be the public meaning of the words at the time.
This last position is pretty close to my view as to originalism. One point I would add though is that if people at the time believed the text is what mattered, then that is another reason to believe that the text is the place to find the relevant intent of the authors and ratifiers.

Update: When I posted this, I hadn't realized that Tom had weighed in, immediately below.

Second Update: Upon rereading my post, I think that I may have misinterpreted Jim Lindgren and as a result been misleading about my position. Jim discusses idiosyncratic meaning and terms of art together, but I think they are different. If the Constitution employs language that has two meanings -- an ordinary meaning and a more specialized public meaning, like a term of art -- then it is up to the interpreter to resolve that ambiguity through ordinary methods of interpretation. I don't think there is any problem with following the term of art if that is what the other evidence suggests is the proper meaning. By contrast, if the authors used a term with an idiosyncratic meaning that was not generally known, then it is problematic to rely on the debates and to choose that meaning. So if Madison and the gang in Philadelphia used words strangely, the Ratifiers would not know about that and that meaning should not be followed. But what if the Ratifiers (in the thirteen states) did know about the meaning? If the Ratifiers knew about the meaning, then it is hard to call it an idiosyncratic meaning. Instead, it seems to be a public meaning (perhaps of a specialized sort).

Ah, you say, but what if it was an idiosyncratic meaning, known only by the Ratifiers, but not the public? I suppose one might want to know why the Ratifiers would assume that was the correct meaning. Their choice of the correct meaning would, in my view, be based on the interpretive rules that they believed would apply, and those interpretive rules did not look to idiosyncratic meaning. Thus, they would not look to the idiosyncratic meaning, only to a specialized public meaning.