Over at Balkinization, Gerard Magliocca has a post entitled "Sigh . . . Originalism," that contains the following statement:
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I'd like to propose a simple test for originalism--an argument is originalist only if the application of the text under consideration was contemplated by somebody at the time the provision was ratified.
Jack Balkin has a very thoughtful reply, followed by another post by Magliocca, and more from Balkin--the entire exchange is well worth reading.
I have great respect for Magliocca as a legal historian, but this post was ill-considered and verges on the nonsensical. Contemplation involves a particular occurrent mental state. According to Magloicca, some person must have consciously thought about "the application of the text under consideration" for the argument for that application to count as an originalist argument. This test simply cannot work. Let me explain why.
It is not clear what Magliocca means by "contemplation" of "the application of the text" but whatever he means, this test will either be: (1) never satisfied, or (2) always satisfied.
Consider the first horn of the dilemma. "Contemplation of the application of the text" might mean some kind of relationship between a mental state of a person at the time of framing and ratification and an event in the world, i.e., application of the text. But this test is never satisfied--because the event in question--application of the test to some particular circumstance--would simply be a future possibility at the time the constitutional provision is framed and ratified. If that sounds abstract, think about it this way. Could anyone have been thinking about the National Labor Relations Act when the Constitution of 1789 was framed and ratified? obviously not--this particular statute had not been imagined, and therefore it is simply impossible to think that someone in 1789 could have had a mental state the content of which is "contemplation of the application of the text of Article I to the NLRA" This means that originalists could not argue either for or against the constitutionality of the NLRA given Magliocca's simple test. This point generalizes to every contemporary application of the constitution to particular legal events (such as statutes or other things that might be constitutional or unconstitutional). So on the first interpretation of Magliocca's test, it turns out that there is no such thing as an originalist argument.
Magliocca might reply that he doesn't mean that the originalist must show that the particular application was contemplated by someone at the time a constitutional provision was framed or ratified. He could argue instead that it must be shown that the relevant application falls under a description that was contemplated at the time of the framing. If he takes that line, then the test will always be satisfied. Why? Because applications can be described in a vast number of ways. Take the NLRA. The NLRA can be described as "a regulation of the national economy" or "a regulation of labor unions" or "a regulation of collective bargaining" or "a regulation of business" and so forth. If Magliocca's simple test requires that originalists show that their application of the test was contemplated under at least one true description, then originalists can easily meet the test--by formulating the description at a sufficiently high level of generality. So the test will always be met.
Magliocca might try to save himself by arguing that the relevant description must at the lowest level of particularity, but if he tries that move, he will find that he has returned to the first horn of the dilemma, because it will never be the case that current events were contemplated by the framers at the lowest possible level of particularity. Magliocca might then try to argue that there is a "right" level of generality--the level that provides the real or true description of the application of the text. But he will quickly learn that there is no such uniquely correct description of an action or event, and that any attempt to formulate criteria that identify this privileged description must fail. A full explanation of the reasons would take us into the philosophy of language and the distinction between referentially opaque and referentially transparent contexts--but the we don't need to have explanation at hand to see the force of the point (just try formulating the criteria for the correct description and you will soon see the problem). There is much else to say about Magliocca's post, but Balkin has already covered that ground.
