Peter J. Smith (George Washington University - Law School) has posted Originalism and Level of Generality (Georgia Law Review, Vol. 51, 2017) on SSRN. Here is the abstract:
Even if one concedes that the meaning of the Constitution today is its original meaning, at what level of generality should one seek that meaning? In considering whether bans on same-sex marriage violate the Fourteenth Amendment, for example, should we seek to determine how the framers of the Amendment would have answered that question, or should we instead seek to discern the broad principle — perhaps “equality” or “no caste-like discrimination” — that the Amendment objectively incorporated, even if application of that principle today might produce results that the framers would not have anticipated? The level of generality at which we ask the question almost foreordains the answer. But how should a faithful originalist identify the proper level of generality?
The old originalism focused on the original intent of the framers, and it sought to ascertain that intent at the most narrow level of generality. Under this approach, if the framers believed that a particular practice was constitutional, then it is constitutional today. The old originalism was principally concerned with judicial constraint and judicial restraint; confining judges to a narrow historical inquiry promoted the former, and narrowing the scope of individual rights promoted the latter. But the old originalism suffered from serious defects, including the fact that it could not justify Brown v. Board of Education and other cases that are central to our constitutional identity today.
The new originalism, which generally seeks the objective original meaning of the text instead of the original intent and treats as non-binding the framers’ expectations about how the text would apply, has addressed many of the theoretical defects of the old originalism. New originalists generally acknowledge that because many of the Constitution’s most contested provisions are framed in abstract terms, we should seek their objective original meaning at a correspondingly high level of generality. But the higher the level of generality at which we seek original meaning, the more room there is for judicial creativity in applying the Constitution’s broad principles to issues that arise today.
Indeed, by embracing interpretation of the text at a high level of generality, new originalists have opened the door to interpretations that would have come as a big surprise to the old originalists: originalist arguments not only that Brown was correct (notwithstanding the well-established view at the time of the framing of the Fourteenth Amendment that it would not disturb the common practice of racially segregated schools), but also that the Amendment prohibits gender discrimination, interference with a broad and potentially undefined group of unenumerated rights, and even bans on same-sex marriage.
These arguments might come as a welcome surprise to those who are skeptical of originalism, but they also come at a cost. First, there is little to distinguish these ostensibly originalist arguments from non-originalist approaches to interpretation, most of which begin by reading the text at a high level of generality and then seek to rely on practical judgment to apply the principles behind the text to modern circumstances. Second, new originalism’s flexible approach to the level of generality means that the approach cannot fulfill its promise of judicial constraint.
Indeed, in practice originalists have varied the level of generality at which they seek original meaning, often from case to case and issue to issue, in ways that cannot be explained simply by reference to the level of abstraction at which the constitutional text is expressed. This article documents that phenomenon, and concludes that sooner or later originalists will have to choose between their claims of constraint and neutrality, on the one hand, and legitimacy, on the other.
And here is a passage from the paper:
Yet the Constitution does not give any clear guidance about how to decide the correct level of generality at which to read its provisions. Instead, originalists must have a theory about how to select the correct level of generality for ascertaining constitutional meaning.
Smith is one of the best and most sensitive critics of originalism. This piece is highly recommended.
Here is what I wrote about this issue in Constitutional Originalism--the very short introductory book that aimed to provide general readers an introduction to the originalism debates:
The Levels-of-Generality Pseudoproblem
Another objection to original-intentions originalism is sometimes framed in terms of levels of generality and particularity. . . . In fact, there is no such problem for original-public-meaning originalism. To see why this is the case, it is helpful to understand something about the origins of the levels-of-generality problem in contemporary legal theory.
Legal scholars have noted that the principle for which a case stands can be stated at various levels of generality, from a holding that is particular to the case at hand to one that is more abstract and would apply to a wider range of future cases. Similarly, in fundamental rights jurisprudence, the question whether a given right has been recognized by existing legal practice may vary with the level of generality with which the right is described. Legal practice has recognized a right to privacy (very general) but not a right to engage in sexual activity outside the confines of marriage (more particular). Likewise, Brest argued in 1975 that the framers’ intent could be stated at various levels of generality. And it is true that an action can be intentional under a variety of different descriptions; one way that such descriptions can vary is in terms of levels of generality. Thus, when I drank a cup of coffee while writing this response, it is true that I intended that action under all of the following descriptions: (1) drinking a beverage, (2) drinking coffee, (3) drinking Peet’s coffee, (4) drinking Peet’s Major Dickason’s Blend coffee, and (5) drinking a fiter-brewed cup of Peet’s Major Dickason’s Blend coffee. My action was intentional under all five of these descriptions, which vary in levels of generality from the very general beverage to the fairly particular filter-brewed cup of Peet’s Major Dickason’s Blend.
This fact about the relationship between levels of generality and intentions does not carry over to linguistic meaning generally. The meaning of the word coffee is not the same as the meaning of the phrase Peet’s coffee, which in turn is not equivalent to the meaning of the phrase Peet’s Major Dickason’s Blend coffee, and so forth. Originalism is concerned with the linguistic meaning of the Constitution. Each operative unit of meaning (a word, phrase, or whole clause) can be general or particular. The Constitution uses the term State, which is general and the name Delaware (which is a state) but is (as compared with State) particular. The Constitution uses the phrase “legislative power,” which is general, and also the phrase “to establish Post Offices and post Roads,” which is more particular. Of course, general provisions can have particular applications. For example, the power to establish a post office includes the power to establish a post office in Champaign, Illinois. But from that fact it does not follow that the linguistic meaning of the phrase to establish post offices and post roads might be to establish a post office in Champaign, Illinois. The linguistic meaning of the phrase is the more general meaning. To think otherwise would involve a conceptual mistake—confusing linguistic meaning with application meaning.
In sum, there is no levels-of-generality problem for original-meaning originalism or for any form of originalism that focuses on the linguistic meaning of the constitutional text. Purposivism—the theory that the meaning of the Constitution is the same as the purposes for which it is adopted—does suffer from a levels-of-generality problem, but purposivism should not be confused with any sophisticated contemporary form of originalism.
Unfortunately, books are not easily searchable on the Internet and are not included in the Westlaw or Lexis databases. It is no fault of Smith's that he was unaware of this section of the book.
I believe that Smith is nonetheless correct that Justice Scalia did in fact depart from public meaning originalism in some cases. In theory, Scalia recognized that original public meaning was the meaning of the text at the level of generality provided by the relevant words and phrases in the text itself. In practice, however, Scalia sometimes treated "original expected applications" as if they were public meaning. "Original expected applications originalism" would have a levels of generality problem--because application expectations are a species intentionality as discussed above. Smith's criticisms is a fair one as applied to any version of public meaning originalism that gives decisive effect to application expectations. The best forms of public meaning originalism do not give application expectations decisive effect--for many reasons, but the the levels of generality problem is one of those reasons.