Tennessee Law Review
Document Type
Article
Abstract
Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism fall flat if critics fail to propose a preferable alternative to originalism. After all, it takes a theory to beat a theory. This Article proposes such a theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This alternative has attracted surprisingly little discussion in the originalist literature until Frederick Schauer's recent article, Unoriginal Textualism. While Schauer devotes much of his article to the claim that the present public meaning approach is theoretically possible, his discussion of why such an approach is preferable to originalism is limited. This Article picks up where Schauer leaves off and argues that the present public meaning approach is preferable to originalism. The present public meaning approach better constrains judges and promotes transparent and predictable decision-making. It also better achieves goals of democratic legitimacy by accounting for modern views on indeterminate, value-laden language in the Constitution and by accounting for expansions of voting rights since the founding. Additionally, the present public meaning approach avoids significant implementation obstacles and is more likely to lead to desirable results. This Article does not contend that the present public meaning approach is the best approach to constitutional interpretation. But it is preferable to originalism-avoiding numerous shortcomings of originalist methodology, and achieving many normative considerations that originalists claim to honor. Originalists must therefore confront the present public meaning approach.
Recommended Citation
Smith, Michael L.
(2022)
"The Present Public Meaning Approach to Constitutional Interpretation,"
Tennessee Law Review: Vol. 89:
Iss.
4, Article 4.
Available at:
https://ir.law.utk.edu/tennesseelawreview/vol89/iss4/4
Publication Date
2022