Solomon Park, MJLST Staffer
- Tomorrow’s Originalism: After Original Public Meaning Originalism & The Implementation Problem
When interpreting the Constitution, the threshold question is what “meaning [did] the text ha[ve] for competent speakers of American English at the time [the relevant] provision of the text was framed and ratified?”[1] This philosophy—known as Public Meaning Originalism (“PMO”)—has become the predominant way judges approach Constitutional questions.[2] But PMO hasn’t always been the majority methodology.[3] Contrary to the prevalence of PMO in the Roberts Court, it was only relatively recently in District of Columbia v. Heller, that PMO really found its footing. As Justice Scalia then wrote: “in interpreting [the Constitution] we are guided by the principle that ‘[t]he constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’”[4] This passage in Heller— and subsequent cases involving constitutional challenges—would usher in a new age of originalism and solidify the prevalence of PMO in modern constitutional jurisprudence.[5]
Although today’s originalism has been defined by PMO as the initial starting point, significant debate persists with how originalism should be implemented. Known as the “implementation problem,” legal scholars have critiqued originalism for its inability to “address how practicing judges and attorneys should apply originalist theories.”[6] This concern over implementation—and workability writ large[7]—has proven to be a significant point of contention in recent Supreme Court cases. And no case better exemplifies these challenges than United States v. Rahimi—a Second Amendment case decided just last term. In five separate concurring opinions, and a single dissent, the Justices took originalism to task—engaging with each other to express their support and concerns with PMO.[8]
This current discord preludes tomorrow’s originalism. But unlike the shift from Original Intent to Original Public Meaning, tomorrow’s originalism will likely not be one of substantive form—but rather of content (i.e. not whether PMO is the correct starting point, but rather what tools should be permissible/given more weight to conduct PMO analysis). Foreshadowing the future, we might consider the wealth of literature that surrounds textualism (i.e. rules surrounding semantic/substantive canons, as well as legislative history) as an indicator of the rigor that originalist jurisprudence might eventually arrive at.
This blog post suggests that before we arrive at tomorrow’s originalism, it may be helpful to take a step back. At its core, PMO has a simple premise: competent speakers of American English around ratification had an idea of what the Constitution meant, and it is this meaning that lawyers, judges, and Justices should now strive to locate.
Focusing on the fundamentals, what if we could literally go back in time and ask these speakers of American English? How exactly would we go about doing so? What sort of parameters would shape the questions we ask? Who would we seek out? This very brief blog post, proposes and shows how the following Mondale Time Machine hypothetical could: concretize ongoing discussions about implementation, and provide a way to clarify, and evaluate, existing originalist tools.
- The Mondale Time Machine (“MTM”) Hypothetical: Core Capabilities & Limitations
The Mondale Time Machine (“MTM”) Hypothetical—Somewhere in the depths of Minnesota Law’s library, there is a time machine…
This very real device has yet to have been activated but can teleport willing “speakers of American English” to the present. The current plan is to then survey these speakers about the Original Public Meaning of a specific provision of the Constitution.
MTM possesses the following initial capabilities, it can teleport any number of people: from anywhere (i.e. geographic area); from anytime (i.e. can limit the search to a specific range of years); and can even teleport people possessing any permutation of specific characteristics or demographics (i.e. of a certain socioeconomic class, race, or gender). Note: this list of capabilities is non-exhaustive and additional capabilities can be added/subtracted by the reader.
MTM requires researchers—meaning the reader—to actually make these decisions. In preparation for the first round of time travel, and in order to best reflect PMO’s objectives, the reader has been asked to provide parameters—and their rationale—to the list of the above capabilities.
III. MTM Raises Two Core Questions/Opportunities:
This hypothetical raises at least two core questions. First, as a procedural matter how much of an issue is the implementation problem—as well as other problems that have been leveled against PMO? Afterall, if we conclude that not even asking a thousand people from the founding era would be sufficient, then the implementation problem is indeed serious. Some of the best arguments for this side could be that: any number of time travelers are probably under inclusive; the selected time travelers would not be representative of the founding era as a population; and evaluation problems could arise when there is disagreement amongst the time travelers.
Second, the hypothetical provides an opportunity to clarify and evaluate desirable features in current/future originalist tools. For example, if we conclude that teleporting an expert linguist from the founding era would be sufficient—then tools like dictionaries (which reflect the opinion of a small but highly educated group of people) should also receive an elevated status. Answering the hypothetical provides a clear platonic ideal for originalism. For example, if we decide that the time machine should transport people possessing various demographics, then the tools we use for originalist analysis should also reflect this ideal. For this reason, a tool which fails to capture these perspectives lacks a signature quality—perhaps even a necessary one—which should demote the persuasive weight given to the tool.
- Conclusion: Would a Time Machine Solve Originalism’s Implementation Problem?
“Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult… Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.”—Justice Gorsuch, United States v. Rahimi[9]
This passage from Justice Gorsuch’s concurrence in Rahimi captures two simultaneous truths. Originalism is, and likely will remain, the “imperfect guide” used to interpret the Constitution. But at the same time, originalism has challenging flaws which arise out of its implementation.
Ultimately, my hypothetical highlights these two realities. On the one hand, a gut feeling tells us that a time machine should be able to solve the implementation problem. Afterall, if not even a thousand people from the founding era could resolve the issue, then what could? On the other hand, working through the hypothetical shows the line drawing problems created by the implementation critique. In the face of that difficulty—and as Justice Gorsuch reminds us—that doesn’t mean the inquiry is over.
I hope this blog post presents an interesting, and entertaining, thought experiment. My answer to the hypothetical would take too many words to write. However, I do think that the hypothetical probably strengthens tools that are capable of more holistically representing communities—such as Corpus Linguistics.
Notes:
[1] Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B. U. L. Rev. 1953, 1957 (2022).
[2] See, e.g., Lawrence B. Solum, Original Public Meaning, 807 Mich. St. L. Rev. 897, 810 n. 5-7 (2024) (providing an in-depth analysis of the use of PMO in: the Supreme Court, various federal courts of appeal, and state supreme courts); John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751, 761 (2009) (“Original public meaning is now the predominant originalist theory”); see also William Baude, Is Originalism Our law?, 115 Colum L. Rev. 2349, 2391 (2015) (concluding that “originalism seems to best describe our law”). But see Justice Stephen Breyer, Pragmatism or Textualism, 138 Harv. L. Rev. 718, 722 (2025) (“While the Court may well be in the midst of a paradigm shift toward textualism and originalism, the unworkability of these approaches in practice will push the Court back toward the traditional approach — gradually and with time”).
[3] See generally Keith E. Whittington, The New Originalism, 2 Geo. J. L. & Pub. Pol’y 599, 599-613 (2004) (describing and explaining the shift from Original Intent Originalism to Original Public Meaning Originalism).
[4] District of Columbia v. Heller, 554 U.S. 570, 570 (2008).
[5] See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev. 1095, 1095 (2009) (“District of Columbia v. Heller has been hailed by its supporters as a model of ‘new originalism,’ a methodology that focuses on original public meaning and eschews any concern for original intent.”).
[6] Michael L. Smith and Alexander S. Hiland, Originalism’s Implementation Problem, 30 Wm & Mary Bill of Rts. J. 1063, 1064 (2022).
[7] See generally Kurt Eggret et al., Chapman Law Review Debate: Does Originalism Work?, 26 CHAP. L. REV. 237, 244 (2023) (manuscript of a debate between Professor Kurt Eggert and Professor Lee Strang over Originalism’s workability issue); see also Justice Stephen Breyer, supra note 2, at 722.
[8] Compare United States v. Rahimi, 602 U.S. 680, 692 (2024) (“the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition) (citing N.Y. ST. Rifle and Pistol Ass’n., Inc v. Bruen, 597 U.S. 1, 26-31 (2022), with Rahimi, 602 U.S. at 702-703 (Sotomayor, J. & Kagan, J. concurring) (critiquing the dissent as being “so exacting as to be useless”), with id. at 711-712 (Gorsuch, J. concurring) (writing to emphasize the importance of originalism. “Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow”), with id. at 714, 719, 719-731 (Kavanaugh, J. concurring) (clearly supporting original public meaning originalism, and examining the role of “pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text”), with id. at 737-738, 739-740 (Barrett, J. concurring) (explaining the “basic premises of originalism,” and explaining the problem of “level[s] of generality”), with id. at 744, 745-747 (Jackson, J. concurring) (explaining that Bruen’s test has led to serious workability issues for lower courts, and that significant questions remain with originalism’s scope), with id. at 753-763 (Thomas, J. dissenting) (explaining why “[t]he Government does not offer a single historical regulation that is relevantly similar to [the applicable statute]”).
[9] United States v. Rahimi, 602 U.S. 680, 711 (2024) (Gorsuch, J. concurring).