What is Original Public Meaning?

Abstract

The concept of Original Public Meaning (OPM) unifies originalist scholars and judges around a single object of interpretation-the meaning of a text at enactment, whether the Constitution or a statute. But beneath that consensus lurks unsettling disagreement and confusion. Whether the relevant meaning is that which is understood by the ordinary public (the lay meaning) or by those more knowledgeable about law (the legal meaning) affects the likelihood of finding accurate and determinate constitutional meaning. It can make a great difference to the outcome of important cases, like the disqualification of Donald Trump.

Unfortunately, many commentators embrace the lay meaning because they mistakenly believe that “public meaning” in OPM entails lay meaning. But the term “public meaning” did not originally signify meaning understood by ordinary people. Instead, as we show in this first history of OPM, “public meaning” signified the meaning expressed by written text as opposed to framers’ secret intent. This account of OPM distinguishes originalist textualism from originalist intentionalism and has nothing to do with distinguishing lay from legal meaning. Commentators are also misled by their view that Justice Scalia embraced lay meaning, but we show that he understood that public meaning connoted only express meaning. 

While the lay meaning view largely eliminates legal meanings from the Constitution, the expressed meaning view is fully compatible with them. We show that Justice Scalia in fact explicitly embraced legal meaning as do leading commentators on OPM, such as Dean John Manning, and at least implicitly those current Justices inclined to originalism. The Article then shows that the legal view is correct, because the Constitution’s legal nature is supported by its numerous legal terms and its evident appeal to legal interpretive rules. We reject on both theoretical and empirical grounds an argument for a lay reading by Professor Larry Solum, a leading originalist scholar.

Keywords: Originalism, Supreme Court, Antonin Scalia, ordinary meaning, Original Public Meaning, Original Methods, The Language of the Law