F.H. Buckley has written a friendly critique of American politics, one carrying on a long tradition of outsiders seeing what we cannot.
On this site Frank Buckley yesterday made a series of puzzling assertions about originalism. First, he says that “original meaning originalism” (which I believe most people call “public meaning originalism”) “dispenses with an examination” of what the Framers intended. At another point he states that public meaning originalism “collapses” into original intent originalism. These statements are in some tension with one another, but neither is accurate.
Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.
On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.
Moreover, in articulating our own theory of original methods originalism, Mike Rappaport and I provide a specific reason why public meaning originalists might consult intent without thinking that public meaning necessarily collapses into intent. Public meaning originalists should employ the interpretive rules of the time. As we say:
The original public meaning approach should also employ the original interpretive rules because this approach focuses on the understanding of a competent and reasonable speaker at the time of the Constitution’s enactment. Just as such a person recognizes that his understanding of the language depends on conventions for word meaning and grammatical rules, he also recognizes that his understanding depends on widely applied interpretive rules. And just as such a person recognizes that there are specialized word meanings, so he recognizes that specific documents may be subject to specific interpretive rules.
One rule of the time attested by jurists was to consult intent if the meaning collected from the words alone were ambiguous. That rule would provide a specific reason to examine intent even within the public meaning paradigm.
Professor Buckley also says:
Of course, the great advantage of Original Meaning originalism is that it permits one to play fast and loose with history, to pretend to an understanding of the past which does not require the effort of paying close attention to how people of the time felt.
I reject this criticism. Of course, any interpretive method may play fast and loose with the evidence. There is surely both good and bad originalism. As to what people felt, that can conceivably be relevant if bears on what the words meant. But there are all sorts of interesting inquiries that historians conduct that do not shed much light on legal meaning. Randy Barnett and Mike Rappaport both have excellent posts contrasting the enterprises of most historians with that of the originalist.
Finally, Buckley suggests that originalists are “uncomfortable with Gordon Wood.” Not this originalist. Although I cannot say I endorse every word Professor Wood has ever written, he is a great historian whom I have read with pleasure and great benefit and have cited in my work.