Imagine that the people yesterday gathered to draft a new Constitution, which includes a First Amendment that says: “The government shall not abridge the freedom of speech.” Today, a federal court hears a case featuring a First Amendment challenge against a public official who blocked the plaintiff from spamming repetitive posts on her (the public official’s) social media page.
Let’s further stipulate three things. First, everyone in this hypothetical world is an originalist. (What exactly that means is a surprisingly complicated question. Suffice it to say for now that everyone is committed to the idea that the meaning of the constitutional text was fixed at the time of its adoption, that is, yesterday, and that this original meaning can and should resolve legal disputes implicating the Constitution.) Second, everyone has perfect access to all records and discussions related to the constitutional enactment. The Framers are willing to share — transparently and in good faith — their intentions underlying each provision; after all, drafting the Constitution is fresh in their memories. Third, we’ll take a leaf out of the classical economist’s book and assume that everyone is reasonable and smart.
Question: would the people of this hypothetical world come to a unanimous agreement about the correct legal outcome of their first First Amendment case?
Common sense dictates that the answer is no. There are many questions of constitutional interpretation embedded in the case, and any ruling pronounced will engender several more. Does the public official count as “the government” when she is using social media? Is blocking on social media “abridging the freedom”? Does posting on a website count as “speech”? Does repetitive posting? What about the repetitive posting of pictures rather than words? Obscene pictures? What if perfectly decent pictures might be mistaken for obscene pictures and get erroneously blocked?
Each question invites disagreement among reasonable minds. If you were to grab ten people on the street and present these questions, they would likely give a wide array of responses — even if you present the questions as pertaining to the linguistic or legal meaning of the text. That qualification bears emphasis. It is trivial to observe that in our pluralistic society, different people have different opinions and values about free speech. By contrast, one might be tempted to think that even those people can agree about the allegedly factual question of determining the public meaning of the words “the freedom of speech,” either in plain understanding or in legal context. A bit of reflective simulation should clarify, however, that the façade of semantic rigidity barely cloaks the inherent flexibility of language necessary to correspond to our complex form of life.
But therein lies the problem. An originalist — a bona fide originalist, at any rate — should be committed to answering yes, that everyone would agree whether the public official violated the First Amendment. Recall our three stipulations. In this hypothetical world, the official enactment story is empirically determinable. In addition to perfect empirical access, the Framers’ candidness ensures perfect epistemic access, a welcome boon for those old-fashioned originalists who care about original intent. Being smart and rational, everyone knows about the prevailing methods of legal or linguistic interpretation as of yesterday. There is no need for battles of epistolary archaeology or transgenerational mentalism. Yet even without these empirical, epistemic, and methodological hurdles, we seem no closer to determining the meaning of the words “The government shall not abridge the freedom of speech” in a way that helps resolve the case at hand.
The problem, then, must be conceptual. Even if practically unattainable, the Constitution’s original meaning should present a theoretical ideal for jurists to approximate in order for it to be useful. Professor Stephen Sachs makes a version of this argument, presenting originalism as a standard rather than a decision procedure and likening it to consequentialism. The value of a standard, however, derives not only from its procedural operability but also from the discernibility of its content. It is unclear whether originalism — as a standard, as an ideal — meets that test. The weakness in Sachs’s analogy becomes clear once we juxtapose originalism with utilitarianism, the best-known form of consequentialism. While we have trouble determining the procedures for measuring utility, we do have an intuitive knowledge of what utility is. At a minimum, I know whether chocolate or vanilla ice cream brings me more utility. When a nurse asks me to rate the pain of my stomachache on a scale of one to ten, the question at least makes sense, even as I might find my answer to be an imprecise endeavor (“Is it a six or seven?”) or the result of a nonuniform procedure as compared with others (“Is my seven a mere six for you?”). The immediacy of first-personal cognition then provides a baseline from which I could extrapolate to guesstimate utility in general. (Indeed, Sachs might have made an intentional choice to compare originalism with the genus, consequentialism, rather than the species, utilitarianism. His formulation of consequentialism — “[A]n act is right if it has the best consequences.” — conveniently uses a standard void of any concrete content.) In other words, the standard of utility is grounded in immediately discernible senses; the problems of utilitarianism reduce to those in measurement and communication.
Originalism suffers a more fundamental flaw. We do not know how to fill in the blank, without being tautological, for the sentence: “X is closer to original meaning than Y if ____.” (Compare with: “X has better consequences than Y if it produces more utility.”) In Professor Richard Fallon’s words, we lack “clear criteria for identifying the truth conditions for claims about original public meaning[].” The public official in our hypo might argue, inter alia, that the original meaning of “the freedom of speech” does not include the freedom to spam posts online. Suppose she presents a comprehensive corpus linguistics dataset showing that as of yesterday, 70% of all communicative instances involving the words “speech” and “spam” indicated a negative association. Suppose the plaintiff hits back with transcripts from the Framers’ debates indicating that the phrase “the freedom of speech” was on at least three occasions used in application to online trolls. How do we go about deciding who is more originalist? Real life examples of clashing originalist arguments abound. The complaint here goes beyond the trite observation that historical determinations are difficult. Rather, it is hard to even begin to adjudicate which side has the better argument. Not only do we not know how, but we also do not know how to how. Yet somehow, the distance of time seems to mesmerize us with the allure of the original public meaning, the original intent, the original methods — fixed, determinate, and awaiting excavation.
I anticipate several objections to this thought experiment. Given the constraint of a short blog post, I will focus on one that stems from an often-made distinction between interpretation (“discovering the semantic meaning of the words in the text of the Constitution”) and construction (“putting that meaning into effect by applying it in particular cases and controversies”). An originalist can concede the indeterminacy of questions pertaining to the application of original meaning to particular cases but maintain that original meaning nonetheless offers a meaningful constraint. After all, it is a natural feature of language that a text with fixed meaning is not responsible for determining every application of that meaning. We all know what “vehicle” means, but that doesn’t guarantee we can easily tell whether an airplane counts as a vehicle. Nevertheless, the semantic floor of original meaning still helps, the originalist argues, insofar as even that rudimentary determination differs from contemporary meaning. Surely several of the interpretive questions in our hypo would be silly to pose regarding the actual First Amendment.
For starters, I cannot resist pointing out that few originalists seem bothered by how far contemporary First Amendment jurisprudence deviated from its original meaning, but the selective wielding of originalism is a topic for another day. More relevant here is the observation that the interpretation-construction distinction saves the conceptual integrity of originalism at the expense of its utility. Almost every constitutional question of import must go beyond merely discovering the semantic meaning of a provision and determine its effect in legal application. As Professor Lawrence Solum puts it, “construction is ubiquitous and . . . the construction zone is ineliminable.” No one would doubt that originalism can definitively assess the constitutionality of a law that criminalizes speech criticizing the President; such a case would now also never make its way to court, if it arose at all. If all the work is being done in the construction zone, what do we gain from learning that originalism can ascertain the thin, barebones original meaning of the Constitution?
The triviality of a fixed original meaning becomes especially salient in legal areas sensitive to technological change. Imagine in our hypo that tomorrow, government-run social media sites start using an unprecedented tool of automated content moderation that limits the viewability of individual posts in proportion to the extent of their corroboration by other news sources (hence, a barely corroborated factual assertion will be invisible to most people — but still viewable by an arbitrarily selected pool of people — visiting the website). Nobody yesterday conceived that this tool could exist; nobody spoke for or against it as a hypothetical matter. Even if we can ascertain the fixed meaning of the First Amendment as of yesterday, it will shed little light on our new problem, if any. The act of applicative interpretation, which must necessarily consider tomorrow’s technologies, circumstances, and values, is where the rubber meets the road. An “originalist” interpretation, in this case, seems virtually indistinguishable from a nonoriginalist one.
For better or for worse, originalism wields great influence in today’s landscape of constitutional jurisprudence — and it is likely here to stay. We would do well not to let the problems of originalism’s empirical indeterminacy distract us from the more fundamental diagnosis on its conceptual integrity.