An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
In my last post I discussed the basic idea of original methods originalism and the different versions of that interpretive approach. Here I want to note a very significant implication of Original Methods Originalism: the possible convergence of original intent and original public meaning. I then want to discuss another aspect of original methods – the view that the Constitution is written in the language of the law and therefore should be interpreted as a legal document.
The Convergence Thesis
The different versions of original methods discussed in my prior post also have important implications for how originalism is conducted. For many years, there has been a significant theoretical disagreement between the original public meaning and original intent approaches. After all, they look for different things (public meaning versus intent). Original methods, however, may cause this theoretical difference to evaporate. This would be a significant result, as it would unify the approaches, leading to a convergence of original public meaning and original intent (as well as originalist positivism, if it also convergences, as we believe).
The reason that original public meaning and original intent converge is that they both ask the interpreter to apply the interpretive rules that would be conventionally applied to documents of that kind. Under original public meaning, those rules would be applied by a knowledgeable and reasonable speaker. Under original intent, a group of authors would have expected and intended those rules to be applied to their language.
The Language of the Law Thesis
So far, in describing original methods I have merely said that interpreters should apply the original interpretive rules – the interpretive rules that would have been deemed applicable to a document of that kind. Here, though, there is an important sub-thesis that affects what interpretive rules are applicable.
The language of the law thesis holds that the Constitution was written in the language of the law – the technical language that lawyers use in communicating about the law. That language is an overlay on ordinary English – adding a large number of technical terms and a set of legal interpretive rules (that are either part of the language or the context of the communication). Thus, if one accepts that the Constitution is written in the language of the law, then one should apply the legal interpretive rules that were applicable to it. This includes a host of legal interpretive rules, such as the rule of lenity, the rule that repeals are disfavored, the rule about how to interpret preambles, and the absurdity rule. It also includes many legal or technical terms that are not part of ordinary language.
The language of the law thesis stands in opposition to the ordinary language view – that the Constitution is written in ordinary language. Under this approach, it is difficult to interpret terms in the Constitution as being technical, especially terms that have both a technical and ordinary meaning. In my view, this view is inconsistent with how originalist scholars practice originalism, since such scholars often seek legal or technical meanings. Under the ordinary language view, legal interpretive rules would also not be employed.