Brian Leiter has some illuminating and critical remarks about my questions for Professor BIlder in response to her op/ed, The Constitution doesn’t mean what you think it means. Professor Leiter is characteristically blunt, and his critical remarks are useful, because I am sure that they reflect the reactions that many others will have to the questions. So, I am grateful that Leiter has called these issues to the attention of his readership.
This post replies to some of Leiter's concerns, but it has a broader purpose, to shed light on the reasons for which I formulated the questions. I will organize my thoughts around a series of questions and answers:
- Why the fuss about an op/ed? Isn't it inappropriate to ask scholarly questions about ideas that are presented in this format? These are very good questions. My answer is based on a distinction between two different roles that scholars can play when they write op/eds. The first role is as a citizen, expressing opinions on issues of public concern. When scholars write from this standpoint, they should be held to the same standards as other public intellectuals--and these standards are not scholarly in nature. The second role is a scholar, intervening in a public dispute on the basis of their special knowledge and expertise. When scholars write from this standpoint, it is appropriate for them to be held to scholarly standards. Of course, they cannot back up their assertions in an op/ed--which is short form writing. But they nonetheless should have done the necessarily scholarly work on which to base their short form writing, and to the extent that their views are disputable, it is entirely fair for other scholars to ask them to explain. I understood Bilder to be writing from the second standpoint. But if this is not the case, then it is entirely fair for her to say that she is merely expressing her political opinions and not her scholarly opinions as a constitutional historian.
- Why are originalists "sensitive" to what they understand to be misrepresentations by nonoriginalists scholars in public political debate? I think that Leiter is correct that originalist scholars do react by objecting when they read nonoriginalists misrepresenting "originalism" to the general public. I can only speak for myself about the reasons for this reaction. In my case, I am frustrated that nonoriginalists frequently say things about originalism that no one who has read the scholarly literature would possibly assert as true of contemporary originalism. The clearest example is the oft-repeated assertion that originalists attempt to "channel Madison" and attempt to resolve contemporary constitutional disputes by asking, "What would Madison do?" Please do not take my word for this. Investigate for yourself. Here are some recent posts by Randy Barnett that illustrate this phenomenon:
- Is it the case that originalists have, in fact, written the thousands of pages claimed by Professor Bilder? Before I turn to what Professor Leiter says about this issue, it is important to remember what Professor Bilder actually said:
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.
Originalists scholars have written thousands of pages about originalism--perhaps even tens of thousands at this point: most of this writing is applied originalism. And it seems likely to me that they have written articles that total "thousands of pages" and in which the phrase "original public meaning" appears at least a few times. But what Bilder claimed was that originalists have written thousands of pages trying to explain the phrase "original public meaning." It is Bilder's precise claim as she formulated it that my question was focused on. This is a subtle point, and I understand that some readers may have missed this aspect of my original post.
Leiter writes as follows:
One can look just at Solum's own SSRN page to find at least 400 pages of writing on this topic. And that's just one author.
My writing does sometimes "try[] to explain" what "original public meaning" is. Gary Lawson is the other author that has written a significant amount (at least dozens of pages) on this topic. But the 400 pages of mine to which Leiter refers are pages about originalism generally. Only a portion of that writing is "trying to explain" what "original public meaning" is. Let me take one example. The working paper, "Semantic Originalism," does have a section that explicitly tries to explain and also defend the phrase "original public meaning" on pages 31-58 (28 pages). The other 148 pages of this 176 page working paper are about other topics. Most of my other scholarship has some discussion in which I assume or stipulate to an account of "original public meaning. I have not written 400 pages that are "trying to explain" the concept of original public meaning.
I have not undertaken a page count, but my hunch is that Bilder may have done what Leiter did when he provided his page count based on my work, and simply guessed that there must be "thousands of pages trying to explain" the phrase "original public meaning" based on the number of pages about originalism generally. If so, it may well have been an innocent mistake on her part. If there are thousands of pages "trying to explain" the phrase "original public meaning," I do not know about them. I would count myself as very familiar with the literature on this topic. Hence, my question for Professor Bilder.
- Why should we care? Who cares if the assertion that there are "thousands of pages" trying to explain "original public meaning" turns out to be false? Once again, let's look at what Bilder said:
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.
My assumption is that this passage was aimed at making a point, roughly that the phrase "original public meaning" is obscure or not-well-defined or subject to multiple and inconsistent interpretation. If I might elaborate the thought, I think the idea would be something along the following lines:
Originalists appeal to the notion of "original public meaning" as if that idea were clear and well defined. But it is not. Originalist scholars have written thousands of pages trying to explain what "original public meaning" is, and they are still trying. If they haven't succeeded yet, then we should be very skeptical of the idea that there is such a thing as "original public meaning."
I don't know whether this gloss accurately represents what Bilder intended to convey. That is why I asked her to clarify her point in my second question. If it is what she intended to convey, then I believe this claim is not just false, it is demonstrably false, and I would be willing to show why this is the case. But if she did not intend to cast doubt on the idea of "original public meaning," then I would agree that her statement is simply mistaken and not misleading.
Professor Leiter has offered some probing criticisms based on his understanding of the first of my five questions for Professor Bilder. I am grateful for the opportunity to clarify in reply. I hope that Professor Bilder does not take his lawyerly counsel "to remain silent" and instead engages with my questions. Besides, I am confident that Professor Bilder does not need Brian Leiter as her counsel. She is more than capable of speaking for herself.
