Harold Anthony Lloyd (Wake Forest University School of Law) has posted Why Originalism Cannot Work: Lessons from Logic, Scripture, and Art on SSRN. Here is the abstract:
Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” Such Originalism, however, hardly withstands scrutiny.
First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become the speakers in ordinary speech, and audiences (and thus the ruled) effectively become the sovereigns when interpreting law.
Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus?
Third, words (however understood by others at the time “originally” uttered) often signify concepts whose meanings embrace change over time. For example, the word “planet” used before the discovery of Uranus and Neptune did not rule out the possibility of discovering further planets. Instead, the signified concept embraces the possibility of such continuing discovery.
Fourth, to the extent a judge is principally constrained only by text and dictionaries and by “history” as the judge understands it, judicial activism is encouraged rather than restrained. A judge may simply pick definitions of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy.
Fifth, to the extent “history” means general “context,” context is slippery ground for Originalists. In addition to textual or internal context, contexts can involve cognitive context; physical and temporal context; social, cultural, and human context; discourse context; purpose context, and policy context. Many of these kinds of context incorporate the notion of change over time and are therefore irreconcilable with Originalism.
Finally, Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as "Landscape with the Fall of Icarus" often attributed to Bruegel and which inspired such great ekphrasis as Auden's "Musée Des Beaux Arts"). These further failures underscore the dysfunction of Originalism.
And from the article:
Another problem with Originalism is that speaker meaning includes references, concepts, and understandings that speakers often expect to be updated and corrected over time. Imagine, for example, that I endowed a fund in 1990 “to explore the planets in our solar system.” If another planet is discovered tomorrow, I would consider that additional planet to be covered by my initial term “planet” even though I couldn’t have known of the additional planet back in 1990. I can say that with certainty because I’m the speaker. However, mustn’t the “reasonable” reader of 1990 exclude the new planet from the list since he couldn’t have known of the planet? I would hope Gorsuch would respond that the reasonable reader of 1990 could include the new planet because he could interpret “planet” to mean that term as it is understood from time to time. But wouldn’t that response effectively abandon Originalism?
The author does not cite any work by contemporary originalists in support of the notion that originalism limits the original meaning of a term to the extension of the constitutional language at the time each provision is framed and ratified. And there is a good reason that no citations are provided: no contemporary originalist (of whom I am aware) holds this view. Consider the application of Lloyd's argument to the term "states." The logic of the argument implies that "states" should be limited to the 13 states that were identified in the text and ratified the constitutional text proposed in 1789, but that understanding of the meaning of "states" is directly contradicted by the text of the constitution itself--which provides for the admission of new states to the union.
The problem is that Lloyd has a conception of "meaning" that is radically implausible as applied to terms of general application (as opposed to proper names). The meaning of a word like "blue" or "cube" is not limited to the set of blue objects or cubes at the time the word is used in a sentence like, "We are going to make ten blue cubes out of construction paper." The conventional semantic meanings of "blue" and "cube" are determined by linguistic facts about patterns of usage. And the conventional semantic meanings create criteria for the application of the terms.
Originalism rests on a very general fact about the way communication works: if we want to know what the language in a text means, we want to know how the words were used at the time the text was written. Thus, the phrase "domestic violence" in Article IV is not the contemporary meaning (which applies to violence within a family or household, such as spousal abuse, child abuse, and elder abuse); Article IV used the phrase to identify violence within a state, such as riots, insurrections, or rebellions.
Original meanings can remain constant even when the facts to which the meanings are applied change. And it is even possible for a fixed original to be combined with a change in our knowledge of the facts with the consequence that we can learn of an error in the application beliefs that prevailed at the time a constitutional provision was framed and ratified. Application beliefs are evidence of original meaning, but it is not original meaning itself and the evidence such beliefs provide is pro tanto evidence and not decisive evidence.
This aspect of originalism is explored in The Fixation Thesis: The Role of Historical Fact in Original Meaning.
