Joel Alicea (Harvard Law School) and Donald L. Drakeman (University of Cambridge) has posted The Limits of New Originalism (University of Pennsylvania Journal of Constitutional Law, Vol. 15) on SSRN. Here is the abstract:
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We argue that New Originalism, which has emerged as the dominant theory of originalism, has a significant methodological limitation for anyone who takes historical research seriously. That limitation arises where historical sources indicate different possible original meanings, which can occur because of New Originalism’s focus on the meaning of the text for a hypothetical, reasonable person at the time of ratification. We describe the first instance of this problem, which occurred in Hylton v. United States (1796). Hylton involved the constitutionality of an excise tax, and we use that case to provide a real example of the impossibility of a New Originalist interpretation when the historical materials provide clear evidence of equally plausible but conflicting meanings. We suggest that Justice Paterson's opinion in Hylton offers a solution to this problem: where New Originalism cannot settle the question of original meaning, judges might turn to Old Originalism's focus on the intentions of the Founders. Our article thus makes three significant contributions to constitutional scholarship: (1) it identifies a critical weakness of New Originalism; (2) it demonstrates how the Supreme Court in the founding era used Old Originalism to resolve this problem; and (3) it represents the most complete analysis of the historical meaning of the taxation provisions in Hylton, which may prove to be useful for present or future litigation over the taxing power.
This paper is very interesting and highly recommended.
I do not believe that the "New Originalism" is committed to the notion of a "hypothetical, reasonable person" as the standard for public meaning. The better view is that public meanings are determined by regularities of usage. The notion of a "reasonable person" can be used as a heuristic device to represent such regularities, but it is conventional semantic meanings and not the heuristic device that provides the standard.
The heart of the paper concerns ambiguity and the problems it created in the Hylton case. In constitutional interpretation (and in communication generally), ambiguity is frequently resolved by resort to context--and information that reveals the intentions or purposes of the authors of a text sometimes provides evidence of the publicly available context of communication and hence can provide ambiguity-resolving context. This role for context in constitutional interpretation is entirely consistent with the theoretical foundations of "original public meaning originalism." The problem of what I call "irreducible ambiguity" (that is, ambiguity that is not resolved by context) is an important one, and purposes or intentions might plausibly play a role in developoing constitutional constructions that resolve such ambiguities. The Hylton case provides a rich example of these and other issues.
