In the Boston Globe, Professor Mary Bilder has an editorial entitled The Constitution doesn’t mean what you think it means. Bilder has a reputation as a careful scholar. I have the highest respect for her work, and her book, Madison’s Hand: Revising the Constitutional Convention, is very important to scholars of constitutional history. Because of my high degree of confidence in Bilder's scholarly integrity and carefulness, I am very interested in the basis for some of the claims she makes in the editorial. I hope that she will provide answers to the following questions. If she does, I will post her answers on Legal Theory Blog.
Question One: You wrote the following:
Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain.
What is the basis for the page count? Which articles by which originalists scholars are you discussing? I am very familiar with the theoretical literature on original public meaning, but if this claim is correct there is a large body of work that I have missed entirely.
Question Two: The passage quoted above uses the word "trying," implying but not directly stating that the attempts have been unsuccessful. Is that reading correct? What in particular do you believe is unsuccessful about the explications of the concept of public meaning to which you refer? Which specific attempts do you believe are unsuccessful?
Question Three: You wrote the following:
Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.
This claim is inconsistent with public meaning originalism as I understand it, and as public meaning originalism has been defended by scholars of whom I am aware. Which public meaning originalists have argued that the constitution should be read as a modern technical contract? Perhaps in this passage, you meant to refer to another variety of originalism, which is called "original methods" originalism. It is possible that the Boston Globe edited your op/ed so as to eliminate a transitional sentence? Is that what happened?
Question Four: You wrote the following:
In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.
This passage suggests that originalists believe that the framers believed that each word of the constitutional text "possessed an invariable, sacred meaning." On what do you base this assertion? It is possible that you are referring to two distinct claims made by originalists: One claim is the Fixation Thesis, which claims that the communicative content of the constitutional text is fixed at the time each provision was framed and ratified? When you say "invariable" do you mean to refer to the Fixation Thesis? If so, do you deny that the framers would have expected that the words they used would have been interpreted according to the conventional semantic meanings of the relevant units of meaning (words or phrases) at time they were authored? Or do you believe that linguistic drift (or semantic shift) was anticipated by the framers and hence that they thought that the meaning of the document would change given accidental changes in meaning? If you are not referring to the Fixation Thesis, perhaps you mean the Constraint Principle: the idea that the original meaning of the text should constraint constitutional practice. Is that what you meant? I assume that your use of the word "sacred" is for rhetorical effect? If not, what did you mean by "sacred"?
Question Five: You wrote:
Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers.
What do you mean by "literally beyond the capacity and purpose of the framers"? What precisely do you believe it is that originalism requires that is literally beyond the capacity of the framers? One possibility is that you believe that originalists require that the Constitution is fully determinate, answering all constitutional questions. Is that what you mean? If it is, then how do you square that assertion with the originalist theorizing since the late 1990s? In particular, how did your statement take into account the work of Keith Whittington, Randy Barnett, myself, and many others that marks the distinction between "interpretation" and "construction" and recognizes the existence of the underdeterminacy of particular provisions? Perhaps, you believe that all of the constitutional text has radically indeterminate communicative content? Please be specific about the sources upon which you relied for the "originalism requires" part of this assertion.
Professor Bilder, originalists have treated your work with respect and care. I ask that you extend us the same courtesy and that you provide answers to these questions. I look forward to your replies.
