Constitutional Interpretation Blog Essay

Originalism Makes Sense: A Response

Response To:

A colleague of mine, In Kyu Chung, recently wrote a Blog post titled “A Thought Experiment: Does Originalism Make Sense?” He answers that question in the negative. My task here, then, is a modest one. Given the scope of this Blog post, I won’t be broaching several important topics, like whether we should be originalists in the first place or which flavor of originalist theory we should adopt. All I’ll try to do is demonstrate that originalism does make sense.

Consider a variation on Professor Gary Lawson’s thought experiment: You come across a decades-old employee manual at your job. Among the tasks listed is an instruction to mail out a message. Reading the manual today, you recognize that the “document [was] created at a particular moment in space and time” and that it was meant to “speak to an audience at the time of [its] creation and draw [its] meaning from that point.” That is, you recognize its meaning is its “original public meaning.” In turn, you ascertain that what the manual meant is that the message should be mailed through the postal service. 

As Lawson bluntly puts it: “[i]nterpreting the Constitution is no more difficult, and no different in principle” than this kind of everyday interpretation. We mine old documents for meaning all the time. Doing so for the Constitution isn’t a novel proposition; it is an already intuitive exercise.

That is not to say determining the original meaning of the Constitution is simple. Our Constitution is only a “great outline[].” It can often — although not invariably — be generally worded or unclear.  So, when we try to comprehend it, our ultimate understanding may likewise be unclear. But even in those instances, we are all unclear about the same thing — the original meaning of the text. 

Importantly, the mere fact that investigations into original meaning don’t always yield clearcut answers isn’t a knock against originalism. It’s a knock against any theory of interpretation. Chung’s critique, then, casts too wide of a net. As Professor H.L.A Hart recognized, lawmakers are “handicap[ped]” by their “relative ignorance of fact” and by their “relative indeterminacy of aim.”  So, they frame “general rule[s] of conduct.” Any interpretive theory, then, is forced to confront rules framed at a high level of generality. That makes interpreting law hard. But we shouldn’t hold originalism to a higher standard than its interpretive counterparts.

Still, even when we confront a general rule, Hart notes that there are “certain clear examples of what is certainly within its scope.” In other words, sometimes interpreting law leads to murky answers, but other times, it doesn’t. As a theory of interpretation, the same is true for originalism.

Indeed, Chung overstates just how frequently inquiries into original meaning will result in wildly divergent answers. He claims that if “[i]f you were to grab ten people on the street and present [a question about original meaning], they would likely give a wide array of responses.”  Maybe that’s true for some constitutional provisions but certainly not for all — or even most — of them. Indeed, originalist scholars recently submitted an amicus brief to the Supreme Court arguing that the original public meaning of “incomes, from whatever source derived” demonstrates that Congress cannot tax unrealized gains. If those scholars are right, originalism can sometimes offer concrete answers to modern questions. 

And even if originalist inquiries don’t always lead to definitive or exhaustive solutions, such exercises can nevertheless narrow the range of acceptable interpretations. For example, if the above scholars are right, we still won’t know the complete contours of Congress’s taxing power. But we’ll know that one type of asset is off-limits. Originalism helps us thin the field.

The fact that scholars or jurists might disagree on questions of original meaning doesn’t undermine the validity of originalism either. Despite what Chung contends, originalism has never required unanimity. Chung argues that, when confronted with a question about original meaning, “[a]n originalist — a bona fide originalist, at any rate — should be committed to answering . . . that everyone would agree” on an interpretive conclusion. 

That’s not right. For starters, no theory of interpretation requires unanimity.  And we shouldn’t expect them to. If that were our standard, all theories would fail. So too, originalism doesn’t — and shouldn’t be expected to — require that everyone agree on questions of original meaning. In fact, as Professors William Baude and Stephen E. Sachs point out, “As to both law and fact, our legal system contains a wealth of shortcuts, default rules, and burdens of proof to resolve disputed questions when we lack certainty about the actual answers.” And, as Baude and Sachs make clear, these types of interpretive rules do not sit outside the law — they are part of it. “[L]aw[s] of interpretation,” then, help originalists confront hard cases with interpretive rules, conventions, and tools that are grounded in the original law itself.  

That leads me to Chung’s next criticism. He takes issue with the existence of the so-called construction zone. Responding to this critique requires a brief discussion of the interpretation-construction distinction. Simply put, interpretation consists of “recogniz[ing] or discover[ing] the linguistic meaning or semantic content of the legal text”; construction is the “process that gives a text legal effect (either [by] translating the linguistic meaning into legal doctrine or by applying or implementing the text).” In other words, even when we can decode the communicative content of the constitutional text — that is, even after determining what the words mean — we still might not be able to resolve the legal dispute before us.  In those cases, we may be forced to enter the “construction zone.”

So, Chung argues, originalism can only help us “ascertain the thin, barebones original meaning of the Constitution.” “[A]ll the [real] work,” he contends, is “being done in the construction zone.” If that’s the case, he suggests, originalism offers us very little.

There are a few problems with this criticism.

First, it overstates the prevalence of constitutional construction. To be sure, Chung correctly points out that Professor Lawrence B. Solum has written that “construction is ubiquitous and the construction zone is ineliminable.” But Solum was among the scholars who recently submitted an amicus brief arguing that the original meaning of the Constitution suggests that Congress does not have the power to tax unrealized gains. That brief makes clear that venturing into the construction zone is not always necessary. Indeed, in some instances, mere interpretation of the constitutional text — not construction — results in neat and on-point constitutional answers. 

Second, and more glaringly, this criticism overlooks the bevy of originalist scholars who have argued that construction need not and should not dishonor the original law and the original Constitution. 

Take Baude and Sachs. For these scholars: “[w]hen there’s a question about the law that the Constitution made, the right place to turn isn’t to just any construction, but to the particular construction prescribed by law.” In other words, all “linguistic content must be processed through law.” And “the law of interpretation as it stood at the Founding” provides us with a way to handle construction in a manner that respects, recognizes, and relies on original law.

Professors John O. McGinnis and Michael B. Rappaport endorse an almost identical approach. They advocate for a strand of originalism called “Original Methods Originalism,” which relies on the “interpretive rules in place when the Constitution was enacted” rather than non-originalist tools of construction. By using original interpretive rules, modern-day interpreters can best “ascertain how ‘an informed speaker of the language would have understood the Constitution’s meaning to be’ at the time of ratification.” For these scholars, it’s possible to both decode the Constitution’s original meaning and handle any remaining indeterminacy with the original methods of interpretation prevalent at ratification. 

By overlooking original methods of legal interpretation, Chung also overlooks that, even when text may seem vague or ambiguous, originalists have developed theories that honor original law and the original Constitution.

So, upon closer examination, Chung’s criticisms of originalism are unpersuasive. Some of his critiques are about all interpretive theories — not just originalism. And others mischaracterize the methodology; originalism has never required unanimity concerning original meaning nor has it embraced a view of construction that undermines the original Constitution.

There are many ways to read and understand the Constitution. Originalism might not be your preferred method of doing so. But even so, when it comes down to it, originalism makes sense.

* JD Candidate, Harvard Law School Class of 2025.  The author thanks the following for their thoughtful contributions and feedback: Adam Lebovitz, Eli Nachmany, Audrey Pope, Professor Stephen Sachs, and Professor Ilan Wurman.