52 Pages Posted: 29 Nov 2005
The view (most prominently advocated by Justice Scalia) that original meaning entails the constitutionality of original practices has strong intuitive appeal. Indeed, as indicated above, it is a position that has been broadly, if implicitly, assumed by originalists and nonoriginalists alike. But the position is mistaken. We will suggest that a failure to distinguish between two different notions of meaning accounts for the position's wide currency. According to the first notion, the meaning of a term is roughly what a dictionary definition attempts to convey - the semantic or linguistic understanding necessary to use the term, as opposed to nonlinguistic facts about the objects or activities to which the term applies. In contrast, according to the second, looser notion, the meaning of a term incorporates the objects or activities to which the term is applied. The first notion lies behind originalism's theoretical force; it is untenable that the meaning of the Constitution in the first sense could evolve. In sharp contrast, it is not only tenable but inevitable that changes occur over time in the class of things to which a constitutional provision is applied.
The assumption that originalism entails the validity of original practices derives its plausibility from a failure to distinguish between the two notions of meaning. Once recognized, the distinction undermines the seemingly natural move from the necessity of interpreting the Constitution in accordance with how it was originally understood to the necessity of upholding practices originally understood to be constitutional. By taking the distinction on board and rejecting the assumption, originalism can readily deflect the challenges based on unacceptable original practices; as a consequence, however, it will not be tenable for originalism, in any case challenging an original practice, simply to rule out the possibility of the practice's invalidity.
Keywords: originalism, original meaning, original intent, interpretation, meaning, constitution, constitutional interpretation, Scalia, principles, practices, fidelity, Rutan, Umbehr, Virginia Military Institute, textualism, cruel and unusual punishment, Eighth Amendment
Suggested Citation: Suggested Citation
Greenberg, Mark and Litman, Harry, The Meaning of Original Meaning. Georgetown Law Journal, Vol. 86, pp. 569-619, 1998; UCLA School of Law Research Paper No. 05-37. Available at SSRN: https://ssrn.com/abstract=855408