Originalism’s Plain Meaning Problem

In The Plain Meaning Fallacy, Bill Watson exposes a problem in what he considers the dominant form of originalism today—original public meaning (OPM) originalism. OPM originalism takes the content of constitutional law to be determined by the communicative meaning of the text at the time of ratification. The problem is that the justifications for OPM originalism as a theory of constitutional interpretation apply only when OPM is plain and OPM is plain relatively rarely.

Watson takes originalism seriously, engaging carefully and thoughtfully with originalist thinkers. He charitably explicates the appeal of OPM originalism while incisively showing that this appeal holds up only when OPM is plain and so supports a much narrower purview for the theory than its adherents want to claim for it.

“Plain OPM,” as Watson defines it, “is OPM’s indisputable core—the content that judges today can be confident that reasonable people at the time of ratification would have taken the constitution to communicate in context” (P. 4). Plainness is an exacting standard. It “requires that it is indisputable today that it was indisputable back then that the provision communicated a certain content and, further, that it is indisputable today that this content requires a certain disposition of the case at hand” (P. 12). As Watson elaborates, “[t]here are two ways that OPM can be open to reasonable dispute and hence fail to be plain: one arising from historical indeterminacy, and another from present-day uncertainty” (P. 12).

Watson examines various arguments that originalist thinkers have advanced to support the view that judges should enforce OPM, including (among others) the following: William Baude and Steven Sachs’s view that OPM constitutes the law and judges ought to apply the law; John McGinnis and Michael Rappaport’s view that OPM is likely to be highly desirable because that is the meaning that gained super majoritarian consent; and the rule-of-law argument that applying OPM supports the predictability and stability of constitutional law.

Watson argues that each of these arguments plausibly justifies the claim that judges ought to enforce plain OPM, but none supports the claim that judges ought to enforce OPM more broadly. Responding to the Baude and Sachs view, Watson observes that, while plain OPM might well constitute the law (according to a Hartian positivist view of the nature of law), OPM more broadly does not. Responding to the McGinnis and Rappaport view, Watson observes that, when OPM is unplain, we cannot be confident that a judge’s view of OPM will reflect the meaning that enjoyed super majoritarian support at the time of ratification. And, in response to the rule-of-law argument, Watson explains how, when original public meaning is unplain, it might be highly inaccessible and controversial, even among experts, and so there is no sure relationship between enforcing OPM and rule-of-law values.

In an elegant argument, delivered with impeccable clarity, Watson exposes a sizeable “gap between justification and application” in OPM originalism (P. 3). “The benefits of OPM originalism attach at most to enforcing plain—as in indisputable—original meaning,” he explains:

Yet the U.S. Constitution’s original meaning is far from plain with respect to many litigated questions, especially those arising before the U.S. Supreme Court today. Thus, the benefits that originalists cite to justify adopting their interpretive method in the abstract cannot justify adopting it in many of the concrete cases that they care about most (P. 3).

To illustrate the variety of cases in which OPM will not be plain, Watson focuses on examples in the domains of the President’s removal power, gun rights, and affirmative action, but it’s not hard to think of others. Accordingly, the normative force of OPM originalism is far narrower than originalists acknowledge.

Watson is not wholly unfriendly to originalism. In the final part of the article, he sets out what he calls “plain public-meaning originalism” as a viable alternative to OPM originalism. Watson’s plain public-meaning originalism “is not wholly toothless and remains true to originalism’s roots” (P. 45). According to this alternative theory of constitutional interpretation, “on questions of first impression, judges should fully enforce a constitutional provision’s plain OPM and should not overstep its plain OPM” (P. 53). To showcase the theory’s bite, Watson points out that it might call for a major overhaul of the Court’s substantive due-process jurisprudence, requiring, at least, “a different or more precise constitutional hook for Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, and Lawrence v. Texas” (P. 51). I’m not sure about this conclusion, though, as all Watson has shown is that plain public-meaning originalism (which, to be sure, he does not endorse but rather offers originalists as a friendly amendment that they might want to incorporate) is a plausibly justifiable approach for cases of first impression. I doubt that many constitutional disputes are truly cases of first impression. Further, I think that precedent carries meaningful normative force. And so I suspect that OPM originalism’s normative force is even narrower than Watson gives it credit for.

In any event, the article is admirably constructive in spirit, and it should be a welcome contribution for originalists and non-originalists alike.