Originalism's Implementation Problem

William & Mary Bill of Rights Journal William & Mary Bill of Rights Journal

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30 (2021-2022)

Issue 4

Article 6

5-2022

Originalism's Implementation Problem Originalism's Implementation Problem

Michael L. Smith

Alexander S. Hiland

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Originalism's Implementation Problem

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ORIGINALISM’S IMPLEMENTATION PROBLEM

Michael L. Smith

and Alexander S. Hiland

INTRODUCTION

Originalism has received a great deal of recent, mainstream attention. President

Donald Trump’s nomination of three justices to the Supreme Court amplified discus-

sions of their judicial philosophies during and following their confirmation proceed-

ings.

Supporters of these nominations highlighted the nominees’ originalist credentials,

arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theo-

ries and methodology. Its academic proponents also refer to it as the dominant form

of constitutional interpretation—often asserting that opponents of originalism have

* Associate, Glaser Weil Fink Howard Avchen & Shapiro LLP; UCLA School of Law,

JD; University of Iowa, BS, BA. The views expressed in this Article are mine alone and do

not necessarily reflect the views of my employer.

** Director of Forensics & Lecturer, Texas Tech University; PhD, MA, University of

Minnesota; BA, University of Northern Iowa. The authors thank Eric Segall for comments

and suggestions on an earlier draft.

See Brian Naylor, Barrett, An Originalist, Says Meaning of Constitution “Doesn’t

Change Over Time”, NPR (Oct. 13, 2020, 10:08 AM), https://www.npr.org/sections/live

-amy-coney-barrett-supreme-court-confirmation/2020/10/13/923215778/barrett-an-origin

alist-says-meaning-of-constitution-doesn-t-change-over-time [https://perma.cc/AS6W-5YEJ]

(characterizing now-Justice Amy Coney Barrett as an originalist and detailing her explanation

of what “originalism” means); Lawrence B. Solum, Judge Barrett Is an Originalist. Should

We Be Afraid?, L.A. T

IMES (Oct. 14, 2020, 1:31 PM), https://www.latimes.com/opinion

/story/2020-10-14/amy-coney-barrett-supreme-court-originalism-conservative [https://perma

.cc/5DVX-V8E4]; Sol Wachtler, Brett Kavanaugh Is an Originalist, N.Y. L.J. (Sept. 20,

2018, 11:57 AM), https://www.law.com/newyorklawjournal/2018/09/20/brett-kavanaugh-is

-an-originalist/ [https://perma.cc/DQ4L-8A47] (describing Justice Kavanaugh as an originalist).

Emily Bazelon & Eric Posner, Who Is Brett Kavanaugh?, N.Y.T

IMES (Sept. 3, 2018), https://

www.nytimes.com/2018/09/03/opinion/who-is-brett-kavanaugh.html [https://perma.cc/ZQJ7

-5G3T] (arguing that Justice Kavanaugh is not an originalist); Kyle Peterson, The Weekend

Interview with Neil Gorsuch: The High Court’s Rocky Mountain Originalist, W

ALL ST.J.

(Sept. 7, 2019), https://www.wsj.com/articles/the-high-courts-rocky-mountain-originalist-115

67792378 [https://perma.cc/6UKZ-TAVE] (noting Justice Neil Gorsuch’s new book and

detailing an interview with him regarding originalism).

Hearings on the Nomination of the Honorable Neil M. Gorsuch to be an Associate

Justice of the Supreme Court of the United States, 115th Cong. 3–5 (2017) (statement of

Lawrence B. Solum) [hereinafter Justice Gorsuch Nomination Hearing], https://www.judi

ciary.senate.gov/imo/media/doc/03-23-17%20Solum%20Testimony.pdf [https://perma.cc

/9W62-LC9T] (describing originalism as being in the “mainstream” of American jurisprudence).

1063

1064 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

failed to enunciate a coherent alternative theory.

Some argue that originalism (at

least, an inclusive version of the theory) is our constitutional law, and that this in it-

self is a reason to follow originalism, as judges are bound to follow the law.

Early originalists focused on determining the meaning of the Constitution by

determining the original intentions of the founders.

Today, though, most originalists

take the approach that the meaning of the Constitution is determined by the original

public meaning of its provisions at the time of its enactment.

This latter approach

to originalism, sometimes referred to as “new originalism,” or “original public mean-

ing originalism,” is now the dominant version of the theory.

This Article focuses

primarily on original public meaning originalism, particularly in Parts III and onward.

There, we will typically use the term “originalism” interchangeably with “original

public meaning originalism,” unless otherwise noted.

Academic originalists have written a great deal explaining their theories of

originalism—including why originalism is justified and what originalist methodology

involves.

This theorizing invites other academics to join in on the discussion,

resulting in further nuances and alternate varieties of originalism, as well as critiques

of various originalist theories.

As originalists respond to criticism and refine their

theories, a virtual subdiscipline of constitutional law has spun into existence. Articles

and books proliferate. Academics sacrifice forests of trees to the cause of explaining,

criticizing, and defending originalism.

Despite the vast body of theoretical work produced by originalist scholars, this

literature fails to address how practicing judges and attorneys should apply original-

ist theories. All too often, academic originalists appear to write for an audience of

See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN.L.REV. 849, 855 (1989)

(claiming that it is “hard to discern any emerging consensus” among non-originalists as to

what an alternate approach other than originalism might be). Even critics of originalist theories

recognize the prominence of the theory. See, e.g., S.L. Whitesell, Comment, The Church of

Originalism, 16 U. P

A. J. CONST. L. 1531, 1554 (2014) (noting originalism’s “ascendant”

status as early as 1997); Guha Krishnamurthi, False Positivism: The Failure of the Newest

Originalism, 46 BYU L. R

EV. 401, 403 (2021) (describing originalism as a “juggernaut”).

See generally William Baude, Is Originalism Our Law?, 115 COLUM.L.REV. 2349,

2352–53 (2015).

E.g., Whitesell, supra note 3, at 1531–32 (discussing the key differences between

“Old” and “New Originalists”).

Id. at 1532.

See generally id. (describing “New Originalism’s” rise in popularity).

See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual

Structure of the Great Debate, 113 N

W.U.L.REV. 1243, 1248–50 (2019) [hereinafter

Solum, Living Constitutionalism] (laying out foundational characteristics of originalists and

making the case for originalism by identifying two “foundational distinctions” and eight

“elements” of the case for the theory—with all but one of the distinctions and elements being

defined by a citation to at least one of the author’s prior articles).

See Whitesell, supra note 3, at 1552–53.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1065

other originalist scholars. This results in lengthy, technical, and heavily theoretical

discussions. The question of how courts and judges are to apply these increasingly

technical and theoretical originalist methods is left by the wayside. All too often,

judges and attorneys cherry-pick from this body of scholarship to create a veneer of

academic legitimacy for their own goal-oriented arguments.

We do not seek to bridge this gap in the originalist literature or to cast aspersions

on the reasons for its uptake in legal practice. Instead, we argue that originalism is

difficult, if not impossible, to implement—at least in cases where a theory of inter-

pretation matters. By demonstrating that originalism is more of an academic phe-

nomenon than a guide for legal practice, we cast serious doubt on judicial and

political treatment of originalism which tends to frame originalism as a method, if

not the method, that judges should employ when interpreting the Constitution.

Determining the original public meaning of constitutional provisions is a

complex undertaking that is prone to goal-oriented findings even if its adherents

believe they are engaging in cautious, prudent analysis. Attorneys are unlikely to

have the time or expertise necessary to engage in the methodical, balanced research

necessary to achieve accurate results. Additionally, they are ethically obligated to make

the strongest argument in favor of their clients and will likely tailor their investigation

and presentation of original public meaning in a manner that supports their clients’

desired outcomes. Indeed, to the extent that an originalist method leads to a single

answer in a case, half of the attorneys involved in that case are ethically enjoined from

relying on the method if an alternate interpretive approach will support their client’s

case. Courts face the options of deciding cases based on the skewed submissions of

counsel, or undertaking their own independent research in the face of significant time

and resource constraints. The latter option carries the risk of courts rendering deci-

sions based on facts and arguments that are not before them—resulting in unchecked,

unreviewable decision-making, the very thing that early iterations of originalism sought

to avoid.

While originalists occasionally acknowledge that their methodology may be

difficult for judges and attorneys to implement, they give short shrift to this concern.

In the rare instances where originalists address the implementation challenges at all,

they typically do so as an afterthought—relegating discussion of practicalities to a

few under-analyzed pages or paragraphs at the end of their articles or books.

This

unaddressed shortcoming lends originalism the appearance of an academically

accepted truth rather than a contested issue that is impractical for legal application.

For those originalists who pay at least some attention to implementation issues,

they often propose that judges and attorneys rely on the work of originalist scholars

See, e.g., RAOUL BERGER,GOVERNMENT BY JUDICIARY:THE TRANSFORMATION OF THE

FOURTEENTH AMENDMENT 464–67 (2d ed. 1997).

For multiple examples, see infra notes 49–63 and accompanying text.

See infra notes 39–51 and accompanying text.

1066 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

to determine the original public meaning of the Constitution.

These originalists

acknowledge that accurate determinations of original public meaning require a great

deal of time, and that scholars—unlike attorneys and judges who have impending

case deadlines—may devote months or even years to their projects.

Additionally,

scholars do not face the same ethical obligations of zealous advocacy as practitio-

ners, meaning that their research is less likely to be guided by the desire to achieve

particular outcomes.

This proposed solution fails. The sheer amount of scholarship and the lack of

meaningful barriers to preventing the publication of shoddy originalist research leave

courts and attorneys to parse through a glut of contradictory scholarship. Addition-

ally, advocacy by academics—motivated by their own political views as well as their

desire to attain wider readership and a higher likelihood of publication—is likely to

result in goal-oriented, argumentative analysis that is little better than that submitted

by counsel.

What’s more, reliance on academic originalist scholarship undermines the norma-

tive reasons for accepting originalism in the first place. Originalists point to several

reasons for accepting their theory—arguing that originalism can help judges reach

a verifiable determination of the Constitution’s meaning,

that originalism may

constrain judges from deciding cases based on their personal or political preferences,

and that originalism is consistent with democratic ideals as it rests on the original

public meaning of provisions adopted by superdemocratic majorities.

Reliance on

originalist academic research to determine the original public meaning of the

Constitution undermines these goals of stability, predictability, and democracy.

Should courts take originalists seriously and truly rely on academic literature in

divining the original meaning of the Constitution, their rulings on the meaning of

constitutional provisions become subject to developments in the academic originalist

literature—a field whose volatility will only increase as specialized experts continue

to enter legal academia and as technological developments (particularly in the field

of corpus linguistics) change the landscape of how historic research is conducted.

Additionally, reliance on originalist scholarship renders courts’ interpretation of the

Constitution even less democratic, because rather than determine the original public

meaning of the Constitution, courts instead rely on what law professors claim that

See Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion,

and the Constitutional Record, 2017 BYUL. R

EV. 1621, 1672–75 (2017) [hereinafter Solum,

Triangulating Public Meaning].

Id. at 1675.

Id.

See id. at 1672–75.

See Whitesell, supra note 3, at 1546.

Id.

Id. at 1549.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1067

meaning is. The inevitable focus on authors’ and publications’ pedigrees as proxies

for selecting higher quality scholarship undermines democracy even further by de-

termining original public meaning based only on the output of prestigious professors

publishing in the most elite publications.

We do not propose solutions for implementing originalism. Indeed, we have

little hope that originalists will succeed in solving the problem of implementation

should they finally decide to devote the necessary time and effort to confront this

issue. We hope that this Article will prompt originalists to at least attempt to take the

practice—not just the theory—of originalism seriously. Should originalists fail to rise

to this challenge, academic originalism will remain little more than an abstract, theo-

retical exercise that is fatally disconnected from the practice of law. In such a case,

originalism’s supporters, including judges and politicians, will need to acknowledge

that originalism in practice lacks the rigor and nuance of originalism as theorized.

I. A B

RIEF BACKGROUND ON ORIGINALISM AND ITS EVOLUTION

This section provides a brief background on originalism, its evolution, and a

summary of the current state of the theory. The goal of this section is to identify

originalism’s key underpinnings that the remainder of this Article will address—not

to provide a complete history and survey of originalism and all of its nuances.

Modern originalism developed largely as a reaction to perceived revisions of the

Constitution by the Supreme Court—particularly the Warren Court.

In Government

by Judiciary: The Transformation of the Fourteenth Amendment, Raoul Berger

criticized the Supreme Court’s “continuing revision of the Constitution under the

guise of interpretation.”

In an argument that foreshadowed the development of the

For a more thorough background of originalism and its variations, see, e.g., Lawrence

B. Solum, Originalism and Constitutional Construction, 82 F

ORDHAM L. REV. 453, 458–69

(2013) [hereinafter Solum, Constitutional Construction] (describing the origins of originalist

theory and some of its present variations); Vasan Kesavan & Michael Stokes Paulsen, The

Interpretive Force of the Constitution’s Secret Drafting History, 91 G

EO.L.J. 1113, 1134–48

(2003). For briefer, more approachable outlines to originalism and its varieties, see Lawrence

B. Solum, Legal Theory Lexicon: Originalism, L

EGAL THEORY BLOG (Aug. 11, 2019), https://

lsolum.typepad.com/legaltheory/2019/08/legal-theory-lexicon-originalism.html [https://perma

.cc/M7U8-8X28]; Lawrence B. Solum, Legal Theory Lexicon: The New Originalism, L

EGAL

THEORY BLOG (July 26, 2020), https://lsolum.typepad.com/legaltheory/2020/07/legal-theory

-lexicon-the-new-originalism.html [https://perma.cc/N45J-ARR7].

See Robert Post & Reva Siegel, Originalism as a Political Practice: The Right’s Living

Constitution, 75 F

ORDHAM L. REV. 545, 554–55 (2006) (describing how “originalism gave

conservative activists a language in which to attack the progressive case law of the Warren

Court on the grounds that it had ‘almost nothing to do with the Constitution’ and was merely

an effort to enact ‘the political agenda of the American left’”) (quoting Lino A. Graglia,

“Constitutional Theory”: The Attempted Justification for the Supreme Court’s Liberal Po-

litical Program, 65 T

EX.L.REV. 789, 789 (1987)).

BERGER, supra note 10, at 3.

1068 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

originalist interpretation, Berger argued that the Court’s role should be narrower,

limited to “polic[ing] the boundaries drawn in the Constitution,” and that the “‘origi-

nal intention’ of the Framers” was “binding on the Court.”

Berger also set forth an

early statement of the role of academic originalist discussion in the political context,

arguing that such scholarship serves to “heighten public awareness that the Court

has been overleaping its bounds.”

In a speech before the American Bar Association in 1985—eight years after

Berger’s Government by Judiciary was first published, then–Attorney General Edwin

Meese warned against “a drift back to the radical egalitarianism and expansive civil

libertarianism of the Warren Court,” arguing that this would “be a threat to the

notion of limited but energetic government.”

Rather than “judg[ing] policies in

light of principles” and “remold[ing] principles in light of policies,” Meese urged

“a jurisprudence seriously aimed at the explication of original intention.”

Fore-

shadowing future developments in originalist theory, Meese vowed that his office

would “endeavor to resurrect the original meaning of constitutional provisions and

statutes as the only reliable guide for judgment.”

Berger, Meese, and other early originalist writers urged that interpretation of the

Constitution be guided by the original intentions of the Constitution’s framers.

This early, “original intentions” approach to originalism came under fire as critics

noted the difficulty or impossibility of attempting to derive a coherent original intent

from a group of people with distinct, and often opposing, ideologies and political

goals.

Indeed, the term “originalism,” itself likely originated in an article written

by a critic of original intentions originalism, Paul Brest.

The original intentions

approach to originalism is uncommon today, although it still has some supporters.

Id. at 3–4.

Id. at 464.

Edwin Meese III, Speech Before the American Bar Association, at 6 (July 9, 1985),

https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/07-09-1985.pdf [https://

perma.cc/W4XM-YQV5].

Id. at 7.

Id.

See id. at 6–7; BERGER, supra note 10, at 466–67.

See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L.

EV. 204, 229–30 (1980).

Id. at 204 (“By ‘originalism’ I mean the familiar approach to constitutional adjudication

that accords binding authority to the text of the Constitution or the intentions of its adopters.”).

See Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication:

Three Objections and Responses, 82 N

W.U.L.REV. 226, 228–29 (1988); see generally Larry

Alexander & Saikrishna Prakash, “Is That English You’re Speaking?” Why Intention Free

Interpretation Is an Impossibility, 41 S

AN DIEGO L. REV. 967 (2004); Whitesell, supra note

3, at 1550 (noting that while there was a “discernable trend” from original intent originalism

to original public meaning originalism, the “‘shift . . . was not a clean break.’”) (alteration

in original) (quoting Thomas B. Colby & Peter J. Smith, Living Originalism, 59 D

UKE L.J.

239, 251 (2009)).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1069

Most originalists assume that “originalism” generally refers to original public meaning

originalism, and will accuse critics who attack original intentions originalism of

targeting the wrong theory.

Today, though, most originalists adopt a version of Justice Antonin Scalia’s

notion that legal minds should pursue the original meaning of the text.

Many also

take the view that originalism is meant to guide constitutional interpretation rather

than attack existing doctrines believed to be “products of judicial excesses.”

Pro-

ponents of original public meaning originalism note that it shares some features with

older originalist approaches—including the propositions that “the textual meaning

of a written constitution is fixed at the time its language is enacted” and that “this

fixed meaning should remain the same until it is properly changed.”

Lawrence Solum

refers to the proposition that constitutional meaning is fixed at the time of its origin

as the “Fixation Thesis,” and identifies it as a “core idea” shared by various “mem-

bers of the originalist family.”

Another shared idea of modern originalist theories is

what Solum labels the “Constraint Principle,” the notion that “constitutional con-

struction should be constrained by the original meaning of the constitutional text.”

There are many subtheories of originalism that are worthy fodder for unique

lines of criticism. Our critique, though, functions on a higher level by challenging

the feasibility judges and lawyers engaging in the rigorous methodology required

to interpret the Constitution’s original meaning—a necessary step for nearly all the-

ories of originalism. We address a variety of methods that purportedly help judges,

attorneys, and academics ascertain the original meaning of the Constitution, including

reliance on constitutional record, immersion in constitutional law, and corpus lin-

guistics. We conclude that such methods cannot be effectively employed to determine

the original meaning of the Constitution and that these methods lend themselves

toward partisan and goal-oriented interpretations of the text, tending toward a ca-

pricious and deleterious application of the law.

See, e.g., Christopher Scalia, Get Ready for a Flood of Falsehoods About Originalism,

ALL ST. J. (Oct. 11, 2020, 4:06 PM), https://www.wsj.com/articles/get-ready-for-a-flood

-of-falsehoods-about-originalism-11602446778 [https://perma.cc/G3QG-SRFQ] (criticizing

characterizations of originalism as seeking the original intentions of the founders).

JOHN O. MCGINNIS &MICHAEL B. RAPPAPORT,ORIGINALISM AND THE GOOD CONSTI-

TUTION 8–9 (2013); see also Antonin Scalia, Judge, U.S. Court of Appeals for the D.C. Circuit,

Address Before the Attorney General’s Conference on Economic Liberties in Washington,

D.C. (June 14, 1986), in O

RIGINAL MEANING JURISPRUDENCE:ASOURCEBOOK 101, 104–06

(U.S. Dep’t of Just. ed., 1987).

See Mitchell N. Berman & Kevin Toh, On What Distinguishes New Originalism from

Old: A Jurisprudential Take, 82 F

ORDHAM L. REV. 545, 545 (2013). Berman and Toh refer

to this as “new originalism,” distinct from “New Originalism,” which they apply to a particular

subset of modern originalist theory. Id. at 553–54.

Randy E. Barnett, The Misconceived Assumption About Constitutional Assumptions,

103 N

W.U.L.REV. 615, 660–61 (2009).

Solum, Constitutional Construction, supra note 20, at 459.

Id. at 460.

1070 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

Suggestions that courts or attorneys fall back on academic research or corpus

linguistics to determine original public meaning are unworkable. There exists an

overabundance of literature on original public meaning, meaning that courts will be

confronted with conflicting citations to various interpretations curated by the advo-

cates appearing before them. Tools like corpus linguistics tend to reflect the biases

of the persons who crafted those tools and the biases of their users rather than an

objective presentation of original public meaning. We conclude that the implementa-

tion problem facing originalism is both immutable and insurmountable. Originalists

must make a serious effort to address the implementation problem, or admit that

their theories are unlikely to be applied in the manner originalists hope and expect.

II. T

HE PROBLEM OF IMPLEMENTING ORIGINALIST THEORY

Most theories of modern originalism require the determination of the original

public meaning of provisions in the Constitution. Originalists fail to address how

this determination should be made in practice, preferring to make assertions at a

theoretical level. Assuming the issue is even addressed at all, it is often discussed

briefly and at the last minute, with originalists waiting until the final chapter of a book

or the last several pages of an article to address how their theories may be applied.

For example, in their book, Originalism and the Good Constitution, John

McGinnis and Michael Rappaport spend the bulk of the text explaining their “Original

Methods Originalism” and why the theory’s basis in supermajoritarian constitutional

provisions and amendments is an ideal approach to interpretation.

How the theory

is to be implemented is reserved for the last ten or so pages of the book, with most

of the discussion centering on scholarly treatment of originalism and originalist

methodology rather than on how attorneys and judges may put the book’s theories

into practice.

See Thomas R. Lee & James C. Phillips, Data-Driven Originalism, 167 U. PA.L.REV.

261, 331–32 (2019) (recognizing, in the final section of an article, that it is a “caveat worth

noting” that judges are not corpus linguists and may not readily have the capacity to engage

in this particular method of originalist analysis); see also Solum, Triangulating Public

Meaning, supra note 13, at 1674–75 (acknowledging that judges’ and justices’ law clerks and

attorneys are unlikely to have the time or objectivity to engage in balanced historical

analysis, and suggesting that legal scholars may do deeper research, and that results reached

by academics and practitioners may be compared and contrasted); I

LAN WURMAN,ADEBT

AGAINST THE LIVING:AN INTRODUCTION TO ORIGINALISM 100–02 (2017) (confronting

objections that lawyers cannot engage in historical research by asserting that they can be-

cause judges tasks of determining credibility and applying facts of events in the past are

similar, and that historians also make mistakes).

MCGINNIS &RAPPAPORT, supra note 33, at 11–15 (introducing the core theses that

take up the bulk of the book).

Id. at 197–207 (addressing, in the final ten pages of a 200-plus page book, how “a culture

of originalism” may be implemented—with much of the discussion reserved for how original-

ism would change theorizing and research in the legal academy).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1071

Another example: Justice Thomas Lee and James Phillips, in their article, Data

Driven Originalism, propose that corpus linguistics methodology be combined with

improved technological search tools to determine the original communicative content

of constitutional terms and provisions.

For about 70 pages, the authors describe

and give examples of their approach, which involves developing coding methods for

various potential meanings of constitutional provisions, examining trends in words

appearing next to each other, looking over clusters of words, and having research

assistants review examples of target terms appearing in original sources.

In the last

part of the article before the Conclusion, the authors consider the objection that

judges do not have the capability to engage in this sort of analysis.

The authors devote

about two pages to this issue, and acknowledge that it’s a concern for their method.

They respond with little more than one paragraph asserting that, despite practical chal-

lenges, judges should use the most effective tools available.

The paragraph con-

tains four footnotes, two of which cite to another law review article coauthored by

Justice Lee, and two of which cite to a concurring opinion authored by Justice Lee.

Finally, take Lawrence Solum’s article, Triangulating Public Meaning: Corpus

Linguistics, Immersion, and the Constitutional Record where he describes three

separate originalist methods: corpus linguistics, immersion, and studying the con-

stitutional record.

Solum goes through the intricacies of each approach, and suggests

that constitutional text may be “translated” by applying all of the methods in tandem.

Towards the end of the article, Solum addresses concerns over shoddy historic analysis

and whether law clerks or practitioners have the resources to engage in detailed

studying of the constitutional record.

Solum admits that law clerks and lawyers

likely cannot undertake research of sufficient breadth, depth, and balance.

He sug-

gests that legal scholars may be able to undertake more extensive research against

which lawyers and clerks may check their results.

These examples illustrate a pattern of paying short shrift to the difficulties of

implementing originalism. It is unclear why so little attention is paid to this issue,

as academic originalism is presumably written with an eye to its use or application

Thomas R. Lee & James C. Phillips, Data-Driven Originalism, 167 U.PA.L.REV. 261

(2019).

See id. at 261–330.

See id. at 331–32.

See id.

See id. at 332 n.204–07.

Solum, Triangulating Public Meaning, supra note 13, at 1624.

See id. at 1678.

Id. at 1673–74. This is only one of the three approaches that Solum would ideally see

applied in tandem—the other two involve an intensive “immersion” in the language of the

time of the founding and employing corpus linguistics methodology to analyze trends in the

use of language at the time of the founding.

Id. at 1674–75.

Id. at 1675.

1072 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

at the judicial level.

Failing to present theories that can be applied by attorneys and

judges is one likely reason why academic discussions of originalism are divorced

from discussions of originalism in the political and judicial spheres.

Originalism must account for this failure if it is to be of any use. This next section

details the implementation problems that originalist theories tend to minimize. Using

Solum’s triangulation method as a framework, it examines the three originalist

methods that Solum advocates and outlines the serious problems with implementing

each of them—concluding that these methods are unlikely to be of any practical use

to attorneys and courts.

A. Corpus Linguistics

“Corpus linguistics is the study of language through systemic analysis of data

derived from large databases of naturally occurring language . . . .”

The corpus

linguistics method requires that interpreters review “a large number of naturally

occurring uses of [a] phrase in a database or corpus of language.”

To do so, an

interpreter reviews examples of the phrase’s use drawn from databases called “cor-

pora,” (or “corpus,” in the singular) which are collections of newspapers, books,

articles, essays, or other similar documents.

For originalist analysis, the interpreter should draw from a corpus that contains

documents from the particular time period during which a constitutional provision

or amendment was ratified.

For the original public meaning of the Constitution and

its amendments at the time of their initial enactment, the corpus of choice is the

Corpus of Founding-Era American English (COFEA), developed by the Brigham

Young University J. Reuben Clark Law School.

That corpus is “designed to rep-

resent general written American English from the founding era of the United States

of America (i.e., 1765–1799).”

It consists of 119,801 documents from various

sources, with the largest three being Evans Early American Imprints, Founders

Online, and HeinOnline.

See Pierre Schlag, Normativity and the Politics of Form, 139 U. PA.L.REV. 801,

867–68 (1991) (describing how normative legal thought “demands and desires” to be enacted

in the “social realm”).

See Solum, Living Constitutionalism, supra note 8, at 1289–91 (recognizing differences

in how originalism is treated in academic discourse compared with how it is described in

popular discourse and how it is implemented in judicial opinions).

Lee & Phillips, supra note 38, at 289.

Id.

Id. at 290.

Id. at 293; see also Solum, Living Constitutionalism, supra note 8, at 1644–45.

Lee & Phillips, supra note 38, at 293.

Corpus of Founding Era American English (COFEA), BYU LAW &CORPUS LIN-

GUISTICS (Oct. 11, 2019) [hereinafter COFEA], https://lcl.byu.edu/projects/cofea/ [https://

perma.cc/L5E4-K4QF].

Id. Only 277 documents, but a total of 32,237,273 words are from these sources.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1073

Evans Bibliography of Early American Imprints consists of texts of books,

pamphlets, and periodical publications printed in the United States from 1639 to

1820—COFEA gained access to approximately a third of these works and selected

the 2,645 documents from the 1760–1799 time frame, which contain 62,660,171

words.

Founders Online consists of papers (personal records, letters, and diaries)

from six individual founders: George Washington, John Adams, Alexander Hamilton,

Benjamin Franklin, Thomas Jefferson, and James Madison.

The largest pool of

documents by far in COFEA is from this source—with 115,408 documents originat-

ing from Founders Online (although this set of documents totals up to 37,057,114

words—far less than that from Evans Early American Imprints).

COFEA also

contains documents from HeinOnline, which include “mostly session laws, execu-

tive department reports, and legal treatises.”

Only 277 documents originate from

HeinOnline, but they contain 32,237,273 words.

Corpus linguistics analysis consists of analyzing instances of word or phrase use

to analyze the frequency of word usage do derive “the more common sense of a

given term in a given linguistic context.”

Investigators review a number of “con-

cordance lines,” of text from a corpus—which are sentences or paragraphs in which

the searched-for term appears—and develop coding methods for classifying the

results.

Investigators may also review common “collocates,” or instances where

words are “commonly used in association with another.”

Common collocates may

provide clues regarding how people in a particular time, or people writing in a

certain context, used a particular term or phrase.

Corpus linguistics analysis involves developing a mechanism to classify or “code”

search results as indicating a particular meaning.

How precisely this is to be done

remains unclear—Lee and Phillips suggest drawing “on principles and practices

from survey and content analysis methodologies.”

Solum devotes even less discus-

sion to coding in the context of using corpus linguistics—instead presenting a search

for collocates of the phrase “science of” with an aim at determining the scope of the

term, “science” in the early nineteenth century.

Solum does so, and notes that frequent

collocates included “words like government, politics, art, law, religion, and theology,”

Id. As of April 25, 2021, the number of titles in COFEA’s downloadable list of current

titles included 2,931 titles, suggesting that the list of titles from this source has been on the rise.

Id.

Id. As of April 25, 2021, however, COFEA’s downloadable title list for this source

contained only ninety-five titles.

Lee & Phillips, supra note 38, at 290–91.

Id. at 291.

Id. at 291–92.

Id. at 291.

Id.

Solum, Triangulating Public Meaning, supra note 13, at 1645–47.

1074 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

which he took to suggest that historic uses of “science” corresponded to a definition of

mastery of any branch of learning rather than the narrower STEM fields commonly

associated with science today.

Presumably, those terms that Solum identifies in his

list of collocates correspond to the broader “mastery” definition of science, but

Solum does not make this explicit—and the coding he employs remains undisclosed.

This lack of disclosure indicates an initial problem with sorting and classifying

search results based on undisclosed coding methods. Addressing how this phenome-

non relates to race in the wider context of search algorithms and related technology,

Ruha Benjamin describes this as the “anti–Black Box” which “encode[s] inequity

to the race-neutral laws and policies that serve as powerful tools for White suprem-

acy.”

Benjamin argues that efforts to remain neutral in applying technologies like

coding and search systems tend to reproduce pre-existing inequities.

This argument

is part of a burgeoning field of research that calls into question the presumptive

neutrality of how codes and algorithms are written, and this concern applies to the

more basic “coding” methods used in originalist analysis—even the simple example

that Solum uses as an illustration, which appears to rely on present-day assumptions

to formulate how results should be coded.

Originalist methods or “coding” classifi-

cation risk being coded to produce the best meaning for particular desired outcomes

rather than a better approximation of “truth”—and a failure to make coding method-

ologies and underlying assumptions transparent exacerbates this risk.

Proponents of corpus linguistics contend that it will make originalist analysis

“more empirical,” noting that judges and justices already engage in similar, less-

formal analysis.

Lee and Mouritsen suggest that corpus linguistics analysis will

allow judges to test hypotheses about phrases’ meanings “through rigorous experi-

mentation with observable and quantifiable data,” and that the results of these

conclusions “will be replicable and falsifiable.”

Unfortunately, corpus linguistics

presents a number of practical challenges, lends itself to corruption by the adver-

sarial process of litigation, and risks undermining the adversarial process should

judges take charge and conduct their own corpus linguistics analysis.

1. The Cumbersome Realities of Corpus Linguistics

The corpus linguistics method of determining original meaning is a time-

intensive undertaking that requires most judges and attorneys to act beyond the scope

Id. at 1645–47.

RUHA BENJAMIN,RACE AFTER TECHNOLOGY 35 (2019).

Id.

See generally SAFIYA UMOJA NOBLE,ALGORITHMS OF OPPRESSION:HOW SEARCH

ENGINES REINFORCE RACISM (2018).

Id.

See James C. Phillips et al., Corpus Linguistics & Original Public Meaning: A New

Tool to Make Originalism More Empirical, 126 Y

ALE L.J. F. 20, 26–28 (2016).

Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 YALE L.J.

788, 829 (2018).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1075

of their expertise. This problem is often overlooked by proponents of corpus lin-

guistics, who either make conclusory assertions about the ease of the method, or

who focus solely on corpus linguistics’ use in the academic sphere.

While judges and attorneys may be used to electronic databases like Westlaw

and LexisNexis, interpreting and sifting through the results of corpus linguistics

searches is a different ball game, as these search results do not result in a series of

cases or statutes that attorneys and judges are accustomed to reading. Instead, judges

and attorneys are confronted with lists of collocates and series of historic document

excerpts. The task is further complicated by the need to account for variations in

spelling—which were particularly widespread during the founding era. For a search

of a corpus linguistics database to pull a complete picture of how a term or phrase

was employed during a certain time period, judges and attorneys must craft searches

that account for variations on how that term was spelled in order to ensure the

results are sufficiently representative.

Additionally, quality corpus linguistics analysis takes time. A search for a term

or phrase used in the Constitution or a constitutional amendment may result in

hundreds, if not thousands, of instances where that term is used.

When that happens,

judges and attorneys are faced with the task of parsing through these voluminous

results—a task that can eat up expensive time for attorneys, and time that could be

spent on other cases for judges and their clerks.

There may be ways to narrow down results, but these methods also present risks.

Judges and attorneys can narrow their search results by only examining those with

collocates that are deemed relevant. For example, someone may want to examine the

use of the term “unusual,” to see if this sheds any light on the Eighth Amendment’s

prohibition on “cruel and unusual punishment.” A COFEA search for “unusual”

results in quite a few hits,

so it may be tempting to look at common collocates to

see if the results can be narrowed. The vast majority of collocates include simple

prepositions or conjunctions (e.g., the, of, and, to),

which an interpreter may find

unhelpful at first glance. But there are some promising hits on the collocate list, such

as “cruel,” “punishments,” “imposed,” “inflicted,” and “manner,” all of which have

See id. at 872 n.323 (claiming that originalist methodology reflects how attorneys can

parse historical materials and present them to the court, and citing one of the coauthors’

concurring opinions as the sole support for the claim that “this ‘isn’t rocket science’”)

(quoting State v. Rasabout, 356 P.3d 1258, 1286 (Utah 2015) (Lee, J., concurring)); see also

Lee J. Strang, How Big Data Can Increase Originalism’s Methodological Rigor: Using Corpus

Linguistics to Reveal Original Language Conventions, 50 U.C. D

AVIS L. REV. 1181, 1212

(2017) (advocating for the use of computer-assisted research techniques by originalist scholars).

See Donald L. Drakeman, Is Corpus Linguistics Better Than Flipping a Coin?, 109

EO. L.J. ONLINE 81, 90 (2020).

COFEA, supra note 59. As of May 1, 2021, a COFEA search for “unusual” resulted

in 1,629 results. Id.

Id.

1076 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

far more manageable hit numbers below 50.

To save time, a judge or attorney may

be tempted to narrow their review to these results. But doing so risks introducing

bias to the search. Remember, the whole point of using corpus linguistics methodology

is to determine the general public use of “unusual” at the time of the founding—not

only instances where that term was used in the context of punishment.

Original

documents describing other unusual phenomena, such as “circumstances,” “bodies,”

and “appearance” may be useful, and excluding results based on the investigator’s

subjective determination of “relevance” may generate skewed or misleading results.

Yet another problem with this method is that advocates of corpus linguistics are,

at best, vague when describing how those engaging in corpus linguistics analysis

should reach interpretive conclusions. Take, for example, a situation where a search

suggests that there are multiple original meanings of a particular term, although one

meaning was used with more frequency than the other. Assume that one meaning of

a term is found to have been used eighty percent of the time, and the other meaning

was used twenty percent of the time.

Judges and attorneys may be tempted to con-

clude that the meaning that is used more frequently is the original public meaning—as

it was the meaning that is most consistent with “ordinary use.” The normative

reasons for making this determination are unclear, however. A term may indeed have

multiple meanings. Indeed, a term with multiple meanings may have been strategi-

cally chosen so that different members of its audience may have taken it to mean

different things—particularly in the context of the Constitution, where the audience

was divided and a consensus was desirable.

And a focus on frequency may ignore

potentially relevant characteristics of each result—such as the size of the audience

for each result.

Without clearly prescribed methods for translating corpus linguistics search

results into actionable bases for decisions, judges and attorneys will have difficulty

implementing this method in practice where a conclusive interpretation is required.

Lee and Mouritsen sidestep the question, acknowledging that corpus linguistics may

Id.

See Drakeman, supra note 80, at 90 (noting the problem of bias in search results and

using the example of narrowing search results for “establishment” to results that include

collocates with “religion”).

This hypothetical assumes that the analysis revealed only two meanings and that there

are no instances of indeterminate meanings.

See Leah Ceccarelli, Polysemy: Multiple Meanings in Rhetorical Criticism, 84 Q. J.

PEECH 395, 404–06 (1998) (describing “strategic ambiguity,” and how such ambiguity may

be employed to elicit favorable responses from opposing factions within a speaker’s

audience); see also Alexander Hiland, Polysemic Argument: Mitt Romney in the 2012

Primary Debates, in D

ISTURBING ARGUMENT: NCA/AFACONFERENCE ON ARGUMENTATION

168–73 (Catherine Palczewiski, 1st ed. 2014) [hereinafter Hiland, Polysemic Argument].

Drakeman, supra note 80, at 96–97 (noting that it is unclear whether a private letter

with an audience of one should be given less weight than a newspaper article that was avail-

able to a wide audience).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1077

help determine whether a given sense of a term is more factually common, but in-

sisting that the implications of these findings are only to be determined after answering

the separate question of what “ordinary meaning” means.

At times, Lee and Mouritsen

leave open the question of what theory of “ordinary meaning” should be employed

when addressing critiques that corpus linguistics analysis may exclude meanings of

terms that are not as commonly used.

Elsewhere, they explicitly denounce the

notion that the most common senses of a word or phrase are the “ordinary mean-

ings” of those phrases—denouncing such an approach as “arbitrary.”

But in other

writings they state that the most common use of a word or phrase at least “might”

be a method of determining the public meaning of historic texts.

Neal Goldfarb argues that frequency of use is an important fact to consider when

determining ordinary meaning.

Goldfarb argues that a long line of authorities sup-

port this claim and cites a number of cases in support of this proposition.

Some of

the authorities that Goldfarb cites, however, do not clearly state that frequency of

use is a factor, or the method, of determining the ordinary meaning of a term—

emphasizing instead the importance of context, or using broad references to the “ordi-

nary” meaning of terms without referencing frequency of usage.

Other authorities

Thomas R. Lee & Stephen C. Mouritsen, The Corpus and the Critics, 88 U. CHI.L.

EV. 275, 334–35 (2021).

Id.

Id. at 341–42.

Lee & Mouritsen, Judging Ordinary Meaning, supra note 78, at 826.

See Neal Goldfarb, The Use of Corpus Linguistics in Legal Interpretation, 7 ANNU.

EV.LINGUIST. 473, 475–76 (2021) [hereinafter Goldfarb, Use of Corpus Linguistics]

(surveying scholarship arguing that “relative frequencies of the various meanings that a given

word can convey” should be a “factor[] relevant to determining ordinary meaning”); see also

Neal Goldfarb, Corpus Linguistics: Empiricism and Frequency, LAW

NLINGUISTICS (Mar. 22,

2018) [hereinafter Goldfarb, Empiricism and Frequency], https://lawnlinguistics.com/2018

/03/22/corpus-linguistics-empiricism-and-frequency/ (“It seems to me that under any reasonable

approach to determining a word’s usual and most known meaning, the frequency with which

the word’s various senses are believed to appear will inevitably be a factor.”).

Goldfarb, Use of Corpus Linguistics, supra note 92, at 475–76.

See id. at 476; Littlefield v. Littlefield, 28 Me. 180, 183, 185–86 (1848) (stating that

the meaning of words is to be “ascertained by popular usage” rather than “arbitrary judicial

edicts” and that, when interpreting a deed, a word in the deed is to be understood “in the

sense in which it was ordinarily used, and understood at that place, whether it accorded with

strict legal accuracy or not”). This phrasing does not describe a methodology for determining

popular usage by measuring the frequency of word usage. Additionally, this example is of

dubious relevance to questions of constitutional interpretation because it interprets a deed,

rather than the Constitution or a statute. Moreover, in the opinion itself, the court notes that

where there are multiple potential meanings, the context of their use should be the focal point

for determining meaning—an approach that the court then applies. See, e.g., Lumbra v.

United States, 290 U.S. 551, 561 (1934) (“Unless by construction these words are given a

meaning far different from that they are ordinarily used and understood to convey, the

evidence must be held not sufficient to support a verdict for petitioner.”); Wis. Cent. Ltd. v.

1078 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

that Goldfarb cites refer to the “common” usage of words, but these authorities’

frequent use of “common” in conjunction with the phrase “ordinary,” suggests that

the courts may be using “common” or “common and ordinary” as a synonym for

“ordinary,” rather than a means of defining “ordinary.”

Alternatively, those opin-

ions that describe the “common, ordinary,” or “common and ordinary” meaning of

words suggest that “common” is a concept that is distinct from “ordinary”—which

undermines the conclusion that the two terms are synonymous. The conflation of the

terms “common” and “ordinary”, as well as their combined permutations are them-

selves illustrations of problems with corpus linguistics methodology. The polysemic

nature of terms creates sufficient overlap that makes the act of distinguishing them

or treating them as synonyms an intervention into the text that predetermines the

outcomes of the analysis, introducing an avenue for the motives and interests of the

judges and attorneys using corpus linguistics to make their way into the results.

Moreover, even if frequency of use is an important factor in determining the

ordinary meaning of a term or phrase, Goldfarb acknowledges the importance of

context in determining meaning.

The importance of context complicates the use

of frequency analysis in at least three ways.

First, even if one definition of a word

or phrase was used more frequently than an alternative definition at the time of the

founding, the less-common meaning may have still played a role in the enactment

of the constitutional provision—particularly in light of the consensus required to

meet the supermajority requirements of constitutional and amendment ratification

and enactment.

This context suggests that frequency analysis may be less war-

ranted when determining the meaning of a constitutional provision. Second, the

importance of context, recognized both by Goldfarb and the sources he cites, require

a more nuanced and thorough approach to corpus linguistics analysis.

Simple

United States, 138 S. Ct. 2067, 2072 (2018) (asserting that a definition of a term that is used

occasionally is not the ordinary meaning of a term, but going on to argue that the context of

the case does not support the alternate meaning urged by the dissent).

See Goldfarb, Empiricism and Frequency, supra note 92; see, e.g., Yarbro v. Comm’r,

737 F.2d 479, 483 (5th Cir. 1984) (“The term ‘exchange,’ in its most common, ordinary

meaning implies an act of giving one thing in return for another thing regarded as an equiva-

lent.”); see, e.g., United States v. 122,942 Shares of Common Stock, 847 F. Supp. 105, 106–08

(N.D. Ill. 1994) (“Such an interpretation comports well with the statute’s purposes in addition

to following the most common and ordinary meaning of its language.”).

See Goldfarb, Use of Corpus Linguistics, supra note 92, at 476 (“Here, we are

concerned not with how a word of phrase is most frequently used overall but, rather, with

how it is most frequently used (i.e., what meaning it is most frequently used to convey) when

it appears in contexts similar to that in the legal provision at issue.”).

See Brian G. Slocum & Stefan Th. Gries, Judging Corpus Linguistics, 94 S. CAL.L.

EV.POSTSCRIPT 13, 14, 20–21 (2020–21).

See Ceccarelli, supra note 86, at 404–06 (describing “strategic ambiguity,” and how

such ambiguity may be employed to elicit favorable responses from opposing factions within

a speaker’s audience); see also Hiland, Polysemic Argument, supra note 86, at 168–73.

Goldfarb, Empiricism and Frequency, supra note 92.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1079

frequency analysis and review of collocates or contexts in a sentence may not be

enough; reviewers may need to examine a larger portion of the document in order

to obtain the context necessary to determine meaning. Third, even where the scope

of corpus linguistics could be expanded to include contextual analysis of documents,

it would create a second order problem of determining what criteria would be used

to include or exclude contextual clues to appropriately determine if the document

contributes to contextual understanding of original public meaning.

100

All of this

presents even more of a challenge for time-pressured judges and attorneys.

Rejecting a simplistic frequency rule will likely lead to more accurate, nuanced

results. But this leaves judges and attorneys in a lurch, as they must determine a

particular meaning to apply in the case at hand. Lee and Mouritsen suggest that corpus

linguistics is not meant to supplant a judge’s “experience, training, or professional

judgment” and that the method serves as a “check against the judge’s linguistic in-

tuition.”

101

This may not be enough for constitutional interpretation, though, as

determining the public meaning of terms from the perspective of readers in the 1700s

or 1800s requires a complete revamping of one’s modern linguistic intuitions—not

a mere “check.” Additionally, if corpus linguistics ultimately serves as little more than

a supplement to alternate interpretive methods, it is unclear why it is worth judges’

and attorneys’ time to engage in such intensive investigations.

2. The Danger of Adversarial Corruption of Corpus Linguistics Results

So far, we have addressed general difficulties that attorneys and judges will face

in implementing corpus linguistics that arise from the nature of corpus linguistics

analysis and the method’s under-theorization. But more problems arise when corpus

linguistics is implemented by attorneys advocating for a particular interpretation of

a constitutional provision or amendment. Attorneys will likely frame the results of

their analysis to advocate for a certain reading and they will likely interpret vague

results in a manner that supports their client. Additionally, attorneys may employ

algorithms that skew their findings in a particular direction. All of this undermines

the objective, replicable appeal that proponents of corpus linguistics rely on when

advocating the method.

a. Argumentative Advocacy and Corpus Linguistics

In cases that involve voluminous results, attorneys may decide to engage in

targeted searches for documents that better support their positions. Corpus tools like

COFEA allow users to generate randomized lists of concordance lines, and those

who advocate the method use random sampling to demonstrate how corpus linguistics

100

Slocum & Gries, supra note 97, at 14–15.

101

Lee & Mouritsen, The Corpus and the Critics, supra note 88, at 345.

1080 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

may be employed.

102

But it is unlikely that attorneys will constrain themselves to

this approach—particularly if the random results don’t come out in their favor.

As discussed earlier, search results may be narrowed by limiting results to

particular collocates. Attorneys whose arguments aren’t supported by randomized

concordance lines may turn to targeted collocate searches to tailor the results to

conform to a particular interpretation. Alternatively, attorneys who are disappointed

with the results of randomized sampling may increase their sample size, cherry-pick

as many supportive documents that they can find, and present all of these sources

to the court as independent authorities.

These skewed approaches to corpus linguistics may be rightfully flagged by the

opposing parties, and courts that are well-versed in corpus linguistics methodology

and appropriate sampling practices may give the results of such analysis less weight.

But there is still a risk that courts may consider, and even be convinced by, this goal-

oriented analysis. Additionally, even if sampling suggests that a proposed interpreta-

tion of a term or provision is not common, presenting examples of less-common

uses still places that alternate interpretation before the court. It is a bell that is

difficult to unring, and it may be enough to convince a court (particularly a court that

wants to reach a particular result) to take up the proposed interpretation anyway—

especially if the court engages in selective citation and eschews corpus linguistics

methodology in its ruling.

103

Even if courts’ and attorneys’ methods are balanced and randomized, the results

of these searches may be spun by skillful advocates. This is particularly likely in

hotly contested constitutional cases, which often involve underdetermined provi-

sions and broadly worded provisions. In these cases, corpus linguistics may trans-

form a debate over the original public meaning of a particular constitutional provision

into a debate over the original public meaning of documents authored at or around

the time the provision at issue was written.

104

While attorneys and judges deal

102

See, e.g., Lee & Mouritsen, Judging Ordinary Meaning, supra note 78, at 841 (using

a sample of one hundred randomized concordance lines to analyze the meaning of the term

“vehicle”).

103

There is a wealth of literature on how judges that purport to be originalist may engage

in selective citation or application of originalist methods to reach particular results. See

Rebecca Piller, History in the Making: Why Courts Are Ill-Equipped to Employ Originalism,

34 R

EV.LITIG. 187, 197–200 (2015) (arguing that originalists may rely on selective citations

to historic sources and goal-oriented readings of these sources to arrive at preferred con-

clusions); E

RIC J. SEGALL,ORIGINALISM AS FAITH 123–24 (2018) (arguing that Supreme

Court Justices have used originalism in a selective manner to support particular outcomes);

ATHERINE L. LANGFORD,SCALIA V.SCALIA:OPPORTUNISTIC TEXTUALISM IN CONSTITU-

TIONAL INTERPRETATION 81 (2017) (noting that Justice Scalia referred to the intent of the

founders in his opinions on the Establishment Clause of the First Amendment, despite

claiming elsewhere that judges should seek to understand the original meaning of the text

rather than the founders’ intent).

104

See Anya Bernstein, Democratizing Interpretation, 60 WM.&MARY L. REV. 435,

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1081

routinely deal with similar arguments over the applicability of cited cases, corpus

linguistics and the numerous historical sources it may bring to bear can escalate

disputes over several cited authorities into disputes over dozens, or even hundreds,

of historic documents. Those who advocate for more rigorous historic analysis in

opinions may welcome this development, but the judges who must decide the cases

before them may be overwhelmed by the numerous, competing historical documents

and arguments and interpretation of counsel.

b. Advocacy by Algorithm and Corpus Linguistics

Another complication that will likely arise when parties engage in dueling

corpus linguistics analyses will be the use of algorithms. So far, there has been little

discussion of algorithms and how they may be used to parse through corpora. Most

originalist academics who discuss the method do not (yet) appear to employ algo-

rithms that purport to arrange results by relevance, and instead display random

samples of results.

105

Much of the coding, grouping, and relevance determinations

appear to be up to the interpreter.

106

A rigorous user of corpus linguistics analysis

would ideally make their searches, search results, concordance line sets, coding, and

classification of the various results, available for anyone to see. In practice, attor-

neys and the court could criticize various results by disputing particular coding

determinations and arguing that certain results support alternate meanings.

Should the method of corpus linguistics catch on, though, attorneys and other

advocates may turn to algorithms to assist in performing targeted searches of results.

An algorithm may search a corpora database and classify results based on those that

are “most relevant,” by, for example, excluding search results that involve senses

of terms that are deemed to be clearly irrelevant for any party to the litigation.

107

Machine learning may also be employed to fine tune search algorithms, with sample

searches of particular terms or phrases and the coding of particular results being used

to “train” an algorithm to better locate “relevant” results through predictive coding.

108

455–56 (2018) (noting that the analysis of empirical corpus data requires judges to make

decisions—including normative decisions over particular interpretations and the relevance

of results).

105

See, e.g., Lee & Mouritsen, Judging Ordinary Meaning, supra note 78, at 841.

106

See Solum, Triangulating Public Meaning, supra note 13, at 1645–47.

107

See Marc van Opijnen & Cristiana Santos, On the Concept of Relevance in Legal

Information Retrieval, 25 A.I. L. 65, 72–73 (2017) (describing the development of algo-

rithmic relevancy techniques).

108

This is a technique that is gaining traction in complex litigation that involves extensive

document review. See Lauri Donahue, A Primer on Using Artificial Intelligence in the Legal

Profession, JOLT D

IGEST (Jan. 3, 2018), https://jolt.law.harvard.edu/digest/a-primer-on-using

-artificial-intelligence-in-the-legal-profession [https://perma.cc/6ZJQ-FSE2] (“[W]hen lawyers

using AI-powered software for document review flag certain documents as relevant, the AI

learns what type of documents it’s supposed to be looking for. Hence, it can more accurately

identify other relevant documents. This is called ‘predictive coding.’”); Robert Keeling et al.,

1082 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

For example, a corpus linguistics analysis conducted in a Second Amendment

dispute over what it means “to bear” arms will likely generate search results that

include uses of the phrase, “to bear” that do not relate to firearms, such as “to bear

fruit,” or a person being “unable to bear further stress.”

109

Machine learning and pre-

dictive coding may be used to fine-tune an algorithm that will better generate “relevant”

results. Taking this a step further, an advocate may also want to focus on producing

“helpful relevant” results—i.e., those results that support the sense that best fit the

argument the attorney is trying to make. Returning to the “bear arms,” example, an

attorney for a party hoping to show that “bearing arms,” means doing so in a military,

rather than individual, context may develop an algorithm that prioritizes as “relevant”

those results that involve documents describing bearing arms in a military context.

This latter example reveals how adversarial use of corpus linguistics may end up

corrupting the features that make corpus linguistics an appealing method to originalist

scholars. Replicating results and checking coding decisions may be rendered impossi-

ble once the search has been run through an algorithm.

110

The results are also far

from objective, as the attorneys running the analysis may set up an algorithm to achieve

a set of skewed results.

But these concerns are not limited to the second example of attorneys trying to

find “helpful relevant” results. They also apply to instances where algorithms are

developed to reduce or exclude results that are “clearly irrelevant.” While the

difference between “bearing a child” and “bearing arms” may seem clear, developing

an exclusion of the former sense may end up removing relevant results—such as

instances in which a person’s carrying or holding of a child is described with the

Using Machine Learning on Legal Matters: Paying Attention to the Data Behind the Curtain,

11 H

ASTINGS SCI.&TECH. L.J. 9, 10-1 (2020) (describing machine learning and predictive

coding and how this technology may be applied to litigation). Algorithmic relevance rankings

are also employed in databases that lawyers and legal scholars use to conduct legal research.

See generally Susan Nevelow Mart et al., Inside the Black Box of Search Algorithms: A

Behind-the-Scenes Look at the Algorithms That Rank Results in Bloomberg Law, Fastcase,

Lexis Advance, and Westlaw, 24 AALL S

PECTRUM 10, 11–15 (2019).

109

See Josh Jones, Comment, The “Weaponization” of Corpus Linguistics: Testing

Heller’s Linguistic Claims, 34 BYU J. P

UB. L. 135, 159 (2020) (excluding as “irrelevant,”

these senses of the term, “bear” in a corpus linguistics analysis of the phrase, “bear arms”);

see also Neal Goldfarb, A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller

and the Second Amendment, G

EO.L.CTR. 1, 3–10, 18–23 (Feb. 26, 2021), https://papers

.ssrn.com/sol3/papers.cfm?abstract_id=3481474 [https://perma.cc/NR4W-7Z3F] (excluding

similar senses of “bear” and “arms” in a corpus linguistics analysis—including “bear arms”

references to bearing a coat of arms, “bear” in the sense of childbirth, and “arms” in the sense

of body parts).

110

See Alyssa M. Carlson, The Need for Transparency in the Age of Predictive Sentencing

Algorithms, 103 I

OWA L.REV. 303, 315–16 (2017) (noting, in the context of risk-assessment

algorithms, that for-profit companies claim that these algorithms are proprietary tools and

do not publicly disclose them). Technological barriers of parsing out the algorithm aside,

replicating results is all the more unlikely if the firm or third party hosting the corpus takes

the position that its algorithms are proprietary.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1083

phrase “bearing.”

111

Using algorithms to parse results presents an avenue for an

investigator’s biases or modern linguistic intuitions to create skewed results that are

not representative of original use of terms.

All of this belies a fundamental problem in the context of algorithmic learning.

Early studies into the nature of algorithmic bias

112

demonstrate that rather than

promoting consensus, algorithms tend to increase fragmentation by solidifying the

boundaries of existing competing beliefs.

113

In other words, left to its own devices,

an algorithm would produce a single meaning, but only after identifying a list of

possible meanings that are preferred in clusters, then selecting the largest cluster,

excluding a number of other potentially very popular definitions. From the stand-

point of a legal practitioner, what they receive is either a list that is comparable to

what can be found in any dictionary or a deceptively simplistic definition that is

deemed appropriate only by virtue of excluding vast swathes of public discourse. All

of this is made more likely by virtue of algorithms and how they function—meaning

that these problems may arise even if advocates or researchers think they are em-

ploying algorithms in an unbiased manner. The neutrality of corpus linguistics results

is thrown into greater doubt by vendors who may operate with a profit motive in

mind with the goal of producing lists of results that fit with the goals and desires of

users rather than with the actual historic usages of terms.

114

3. Interference with the Adversarial System

While adversarial use of corpus linguistics analysis presents a host of problems,

judicial use of the technique raises separate concerns. In particular, urging courts to con-

duct their own corpus linguistics analysis runs afoul of the norm that judges should

not engage in independent factual or scientific research in reaching their conclusions.

Because civil and criminal proceedings in the United States are adversarial,

courts typically avoid conducting research into facts or issues beyond the scope of

the record or the parties’ briefs. The corpus linguistics method, however, requires that

courts engage in intensive independent corpus linguistics research when interpreting

the Constitution—either to verify the arguments by counsel, or to ensure that accurate

results are reached if counsel fail to use this methodology.

115

This creates the risk of

111

For a modern example of this, see Elspeth Young, Bearing a Child in Her Arms (paint-

ing), https://www.alyoung.com/art/work-virgin_and_child.html [https://perma.cc/2N6G-48GX].

112

The generally accepted term for the tendencies of algorithms to reproduce existing

inequities. See, e.g., Nicole Turner Lee, Paul Resnick & Genie Barton, Algorithmic Bias De-

tection and Mitigation: Best Practices and Policies to Reduce Consumer Harms, B

ROOKINGS

INST. (May 22, 2019), https://www.brookings.edu/research/algorithmic-bias-detection-and-miti

gation-best-practices-and-policies-to-reduce-consumer-harms/ [https://perma.cc/3LEX-5ASN].

113

Aina Sirbu et al., Algorithmic Bias Amplifies Opinion Fragmentation and Polarization:

A Bounded Confidence Model, PLOS ONE (Mar. 5, 2019), https://journals.plos.org/plosone

/article?id=10.1371/journal.pone.0213246 [https://perma.cc/V76W-KP5P].

114

See SHOSHANNA ZUBOFF,THE AGE OF SURVEILLANCE CAPITALISM:THE FIGHT FOR A

HUMAN FUTURE AT THE NEW FRONTIER OF POWER 122–25 (2019).

115

See Slocum & Gries, supra note 97, at 20–21.

1084 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

courts veering beyond the arguments of counsel and issuing unreviewable conclu-

sions on the meaning of terms.

This criticism should not be a surprise for advocates of corpus linguistics. Indeed,

the Utah Supreme Court has raised this precise concern against Justice Thomas Lee—

a coauthor of most of the sources cited in this section.

116

In State v. Rasabout, the Utah Supreme Court addressed whether Rasabout, who

had fired a gun twelve times into a house occupied by a rival gang member, could

be prosecuted for twelve separate felony counts for unlawful discharge of a firearm.

117

The court concluded that each shot could give rise to a separate count, finding that

the statute’s term “discharge” meant each individual shot, and noting that each in-

dividual shot carried an independent harm.

118

In a lengthy concurring opinion, Justice Lee agreed with the majority’s conclusion

that the term “discharged” applied to “‘each discrete shot’ expelled from a gun,” but

argued that the majority was wrong to resort to a dictionary to resolve the debate

over the term’s definition.

119

Instead, Justice Lee relied on the Corpus of Contempo-

rary American Usage (COCA), “to analyze the meaning of discharge of a firearm”

and concluded that the 81 instances where “discharge” appeared within five words

of “firearm, firearms, gun, and weapon” indicated that “discharge” was “overwhelm-

ingly” used in the “single shot sense.”

120

Did they though? Justice Lee specifies that:

• Twelve of the 81 hits “clearly linked discharge to a single bullet.”

121

• Sixteen of the hits described accidental discharges, which Lee charac-

terized as instances of the term being used in the single-shot sense

because “it seems highly unlikely if not impossible that an accidental

trigger-pull could result in a release of all of the bullets in a gun’s

magazine.”

122

• “Fifteen other hits were a bit more ambiguous; but on closer examina-

tion, the discharge in question seemed to imply a single shot (based on

the nature of the weapon, the circumstance of the discharge, or descrip-

tion of the resulting damage).”

123

116

See State v. Rasabout, 356 P.3d 1258, 1264–66 (Utah 2015).

117

Id. at 1261.

118

Id. at 1263–64 (analyzing Utah Code section 76-10-508).

119

Id. at 1271 (Lee, J., concurring).

120

Id. at 1281–82.

121

Id. at 1282 (emphasis added).

122

Id. at 1282. Lee never specifies the types of guns that are addressed in these instances,

making it unclear if the stories referred to a single-shot rifle, a semiautomatic weapon, or a

machine gun—the last of which could certainly result in multiple bullets being fired as a

result of a single trigger pull.

123

Id. (emphasis added).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1085

• One hit was irrelevant, as the discharge referred to a patient being

discharged from a hospital.

124

• One instance did involve the word “discharge” being used to describe

the release of multiple bullets.

125

• For the thirty-six other instances, Justice Lee concluded “that there was

insufficient detail to indicate whether the discharge at issue had refer-

ence to a single shot or to the emptying of the magazine.”

126

Justice Lee concluded that this analysis indicated that “discharge of a weapon is

used overwhelmingly in the single shot sense.”

127

What made certain conclusions

“clear” or how he was able to work out that some “ambiguous” results ultimately

“implied” this conclusion was not explained further.

128

The majority took issue with Justice Lee’s approach, noting that Justice Lee

conducted the corpus linguistics research sua sponte, that Rasabout had no opportu-

nity to respond or present a different perspective, and that this violated “the very

notion of our adversary system.”

129

The majority noted that linguistics is a scientific

field, and argued that it was “entirely inappropriate for this court to conduct the

independent scientific research that serves as the basis for Justice Lee’s approach.”

130

The majority also warned of the burdens that corpus linguistics research would place

on the courts and litigants.

131

And the majority criticized Justice Lee’s distinguishing

between the categories of his search results, questioning how Justice Lee was able

to parse through the majority of results that were not “clear.”

132

Some of the majority’s critique addresses corpus linguistics in general.

133

While

corpus linguistics may give attorneys and judges a broad set of examples, the approach

may backfire and exponentially increase the complexity of the judge’s task by multiply-

ing one underdetermined phrase into an analysis of dozens of similar underdetermined

phrases. Skepticism of analysis that purports to distill “ambiguous” examples into

concrete, conclusive examples of a particular meaning is therefore warranted. These

are problems that the corpus linguistics method must grapple with, and a full discus-

sion of this criticism and potential responses is beyond the scope of this Article.

What is within the scope of this Article, though, are the majority’s concerns that

judicial corpus linguistics analysis—particularly instances where that analysis is done

124

Id.

125

Id.

126

Id.

127

See id.

128

Id. at 1282.

129

Id. at 1264–65.

130

Id. at 1265.

131

Id.

132

Id. at 1266.

133

Id. at 1265.

1086 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

at the court’s own initiative—creates a risk of bad law.

134

The majority noted that

its judicial resources were already spread thin, and that requiring judges to engage

in corpus linguistics research in every case involving disputed statutory terms was

unfeasible.

135

If coding and classification of results is performed by only one person,

this creates a risk of skewed classifications that are not balanced out by multiple sets

of eyes.

136

Moreover, a court performing corpus linguistics analysis on its own initiative

could result in this research being done poorly, as it would involve unchecked, and

potentially irreversible determinations. In cases like Rasabout that interpret Utah

state law,

137

if the Utah Supreme Court ends up getting its corpus linguistics analysis

wrong, that incorrect interpretation can’t be appealed. It doesn’t matter if the method

can be reviewed, replicated, and disproven—the decision has been made by the

highest judicial authority in the state.

The Rasabout majority’s concern over independent corpus linguistics analysis

undermining the adversarial system should carry particular weight for some orig-

inalists who present originalism as a means of preventing judges from imposing

their own views onto the case.

138

The unchecked and unreviewable use of new and

quickly changing linguistics research technology by judges who may be barely

familiar with corpus linguistics methodology is contrary to this goal of judicial

constraint and predictability.

139

B. Studying the Constitutional Record

Solum’s triangulation approach to originalism includes the method of “studying

the constitutional record,” which is closest to how originalist analysis occurs in legal

argument and judicial opinions.

140

There are at least five “components” of the

method of studying the historical record:

1. Precursor provisions and proposals—studying precursors to the Consti-

tution like the Articles of Confederation and state constitutions, as well

as similar precursors to the Bill of Rights.

141

134

Id.

135

Id.

136

See Jones, supra note 109, at 173 (noting as a caveat to the author’s own results that

his analysis was the product of the author’s own intuition and biases and that coding

decisions should ideally be reviewed by multiple people and be subject to quality control).

137

See generally Rasabout, 356 P.3d.

138

Id. at 1285.

139

Some critics have suggested that the various shortcomings in each step of corpus

linguistics methodology may render the method no more reliable than flipping a coin—if not

worse. See generally Drakeman, supra note 80.

140

Solum, Triangulating Public Meaning, supra note 13, at 1654.

141

Id. at 1655.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1087

2. The drafting history—examining the records of the Philadelphia Con-

vention.

142

3. The ratification debates—examining records of states’ ratifying conven-

tions and public debates over ratification, including the Federalist Papers

and Antifederalist writing.

143

4. Early historical practice—studying how certain provisions were imple-

mented following the ratification of the Constitution (or amendments).

144

5. Early judicial decisions—reviewing early judicial decisions interpreting

provisions of the Constitution and its amendments.

145

This is a lot of material for courts and attorneys to digest. Judges in particular may

find this task daunting, as they must balance time spent on constitutional cases with

other cases on their dockets. Attorneys also must balance the demands of their

various clients and cases and, with the possible exception of some highly specialized

practitioners, cannot devote all of their time to historic research.

Moreover, Solum notes that investigating the constitutional records involves

numerous caveats.

146

The records of the Philadelphia Convention are largely limited

to the notes of James Madison, who revised them in the years following the estab-

lishment of the government and the evolution of his own views.

147

The ratification

debates may not give an accurate perspective of the original meaning of the text

because proponents and critics of provisions may have characterized the text in

motivated (and potentially misleading) ways.

148

A similar problem arises with early

historical practice—particularly practices that were the subjects of dispute or con-

troversy, as statements regarding the propriety of these practices may have included

vague, loaded, or polysemic language in the pursuit of certain political ends.

149

The caveats continue. Solum distinguishes between the “communicative con-

tent” and the “legal content” of constitutional provisions, arguing that the original

meaning of particular provisions is distinct from how those provisions were initially

implemented.

150

While such “legal content” of provisions “can provide evidence of

public meaning”—it just doesn’t constitute the original meaning.

151

142

Id. at 1655–56.

143

Id. at 1657.

144

Id. at 1658–61.

145

Id. at 1661–63.

146

Id. at 1663–66.

147

See generally MARY SARAH BILDER,MADISON’S HAND:REVISING THE CONSTITU-

TIONAL CONVENTION (2015).

148

Solum, Triangulating Public Meaning, supra note 13, at 1657–58.

149

Id. at 1658–60.

150

Id. at 1663–64.

151

Id. at 1664.

1088 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

Similarly Solum warns against relying too much on the original “expected

applications” of constitutional provisions.

152

Solum argues that even if an expected

application is based on “a true belief about the public meaning of the constitutional

text” it “could nonetheless be a misleading guide to recovering the communicative

content of the text if that expectation was based on a false belief about the facts.”

153

Other scholars of originalism also warn against framing original meaning using

early applications of those provisions.

154

Still others argue that “while the original

meaning may not be defined by the expected applications, these applications will

often be some of the best evidence of what that meaning is.”

155

All of this compli-

cates the task of deriving an original meaning of the Constitution’s text from sources

in the historic record.

1. The Unrealistic Expectation That Courts and Attorneys Will Conduct a

Rigorous, Objective Investigation of the Constitutional Record

Judges and lawyers aren’t historians by trade, so the task of reading through

debate transcripts, dueling essays, and other written materials forces them out of

their wheelhouse. Even for Justices on the Supreme Court, who enjoy assistance of

highly qualified clerks and who are tasked with performing the highest-level review

of constitutional provisions, high quality historical analysis is often too much to

ask.

156

For judges in lower courts, the task of taking on extensive historic research

to address a small subset of their cases is an unrealistic demand.

157

152

Id.

153

Id.

154

See WURMAN, supra note 38, at 39–40 (arguing that the “sense” of constitutional

provisions—which Wurman describes as a “function” applied to particular circumstances—

are distinct from the “referents” of those functions—that is, the facts and circumstances

before the courts applying those provisions); see also Christopher R. Green, Originalism and

the Sense-Reference Distinction, 50 S

T.LOUIS U. L.J. 555, 560 (2006) (advancing the theory

that “the sense of a constitutional expression is fixed at the time of the framing, but the

reference is not, because it depends on the facts about the world, which can change”).

155

John O. McGinnis & Michael Rappaport, Original Interpretive Principles as the Core

of Originalism, 24 C

ONST.COMMENT. 371, 378 (2007).

156

See Lorianne Updike Toler, Law Office Originalism 20–21 (Mar. 2, 2021) (unpub-

lished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3659611 [https://

perma.cc/H9SE-W3GM] (noting Supreme Court Justices’ persistent failures to cite historical

sources, and that—in the few instances they do include citations—they tend to cite to

secondary sources rather than primary sources); see also Alejandre-Gallegos v. Holder, 598

Fed. App’x 604, 605 (10th Cir. 2015) (“In our adversarial system, neutral and busy courts

rely on lawyers to develop and present in an intelligible format the facts and law to support

their arguments.”).

157

See Martin S. Flaherty, Historians and the New Originalism: Contextualism, His-

toricism, and Constitutional Meaning, 84 F

ORDHAM L. REV. 905, 912–13 (2015) (suggesting

that courts, attorneys, and even law professors have demands on their time that are not

typical of professional historians, and that this may result in shoddy historical research).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1089

Originalists may suggest that, given the constraints on judges’ time, attorneys

will do most of the work for the courts by researching, drafting, and presenting

originalist briefing and argument to courts.

158

Attorneys may take the time to analyze

the constitutional record and determine the original public meaning of constitutional

provisions. Briefing, perhaps with supplemental expert reports and amicus submis-

sions, will provide the necessary insight for the courts to reach decisions.

The problem is that counsel will likely conduct their research with their clients’

interests in mind, rather than with the goal of objective historic analysis, and their

briefing and arguments will reflect this advocacy. Attorneys, after, all, are ethically

obligated to zealously represent their clients.

159

Amici will likely be of little help as

well, as many of them will likely consist of interest groups founded to pursue par-

ticular policy goals.

160

Courts are then left with the unsavory options of adopting one

of the parties’ arguments and analysis—analysis that the court likely knows was

reached through selective sourcing and motivated reasoning—or checking the sources

and research performed by all parties, a task that may take even more time than

conducting an independent search for original public meaning.

And as for the notion that courts should search for original public meaning

themselves, this approach raises its own problems. We have already noted that busy

courts—particularly lower courts—will not have the time to engage in thorough his-

toric inquiries. But a further issue with this proposal is that courts may end up straying

beyond the arguments and sources relied upon by counsel and come up with their own

conclusions. Recall that one of the motivations behind originalism is to constrain

judges from deciding cases based on their political or policy preferences.

161

Originalism

158

See, e.g., Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U.

J.L. &L

IBERTY 44, 58–63 (2019) (recognizing a lack of originalist briefing at the lower court

level and proposing that courts request originalist briefing or issue standing orders requiring

originalist briefing); Stephen E. Sachs, Originalism: Standard and Procedure, 135 H

ARV.

L. R

EV. 778, 787 (2022).

159

See MODEL RULES OF PRO.CONDUCT r. 1.3 cmt. (AM.BAR ASS’N 1983) (requiring a

lawyer to “act with commitment and dedication to the interests of the client and with zeal in

advocacy on the client’s behalf”).

160

See Piller, supra note 103, at 189–90 (highlighting the danger of partisan bias in non-

attorney experts and describing selective reliance on amicus briefs).

161

See Justice Gorsuch Nomination Hearing, supra note 2, at 1–2 (noting that under

originalism “the United States Supreme Court should consider itself bound by the original

public meaning of the constitutional text” and that originalist judges “do not believe that they

have the power to impose their own values on the nation by invoking the idea of a ‘living

constitution’”); Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, The Poverty

of Public Meaning Originalism, 48 S

AN DIEGO L. REV. 575, 578 (2011) (“Originalism is

often described and justified as a means of preventing modern courts from imposing their

moral preferences on cases.”). As academic originalism has morphed into a multifaceted set

of distinct and often conflicting theories suggesting varying levels of restraint, some originalists

now claim that limiting judicial discretion is no longer a goal of originalism. Keith E.

Whittington, Originalism: A Critical Introduction, 82 F

ORDHAM L. REV. 375, 392 (2013)

1090 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

gives the judges the chance to substitute one lack of constraint with another by

letting them engage in historic analysis without regard to the arguments and authori-

ties of counsel. In a legal environment where judges come under fire for conducting

simple internet searches, it’s unlikely to expect parties and the public to accept courts

undertaking unconstrained, expansive historic research on their own initiative.

162

These concerns address the first four categories of documents Solum identifies

in the “constitutional record.” But perhaps there’s some hope with the fifth set of

documents—early case law applying constitutional provisions.

2. Early Case Law and Originalist Treatment of Early Applications

Judges and attorneys are used to relying on prior cases and making arguments

applying courts’ holdings and analysis in those cases to subsequent patterns of fact.

This isn’t specific to cases involving questions of constitutional law—this is how

legal reasoning works in nearly all cases.

163

While analyzing precursors to the

Constitution, ratification-era debates, drafting histories, and early historical practices

may be beyond the knowledge and research abilities of judges and attorneys,

analyzing early cases to determine original public meaning may not be.

164

(“Limiting judicial discretion has rarely been offered as a compelling justification for the

adoption of originalism in the recent literature.”); see also Thomas Colby, The Sacrifice of

the New Originalism, 99 G

EO. L.J. 713, 714–15 (2011) (arguing that “Originalism has sold its

soul to gain respect and adherents” by sacrificing its original promise of judicial constraint).

This conflict between how constraint as a normative justification for originalism operates in

the political sphere as opposed to the academic sphere is one example of how originalist

discussions in academic theory differ from originalism in practice—a subject we plan to

address in future research.

162

See Frederick Schauer, The Decline of “The Record”: A Comment on Posner, 51 DUQ.

L. R

EV. 51, 54 (2013) (“For a judge to go outside of the record in the search for additional

facts, or for an advocate to encourage a judge to do so, has long been a cardinal taboo of

American appellate practice.”); see also James M. Beck, Pitfalls of Judges, Lawyers, and

Experts Citing Wikipedia, D

RUG &DEVICE L. (Jan. 23, 2017), https://www.druganddevice

lawblog.com/2017/01/pitfalls-of-judges-lawyers-and-experts-citing-wikipedia.html [https://

perma.cc/M3B6-QY5M] (surveying instances of judges and special masters citing to Wikipedia,

and noting blowback resulting from such instances, including reversals); Colter Paulson,

Judge Posner Goes Where No Judge Has Gone Before—Internet Sources as Evidence,

AT’L L. REV. (Aug. 21, 2015), https://www.natlawreview.com/article/judge-posner-goes

-where-no-judge-has-gone-internet-sources-evidence [https://perma.cc/5X9E-DJ3U]) (de-

scribing Judge Richard Posner’s use of internet sources in the case, Rowe v. Gibson, 798

F.3d 622 (7th Cir. 2015), and noting the “traditional rule . . . that facts not in the record

cannot be raised in a brief”).

163

See generally Grant Lamond, Precedent and Analogy in Legal Reasoning, STAN.

NCYCLOPEDIA PHIL. (June 20, 2006), https://plato.stanford.edu/entries/legal-reas-prec/#:~:

text=Precedent%20involves%20an%20earlier%20decision,similar%20to%20the%20earlier

%20one [https://perma.cc/EV6L-PMW9].

164

Although originalist analysis of certain provisions affected by the development of

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1091

But this is where additional caveats by originalists further complicate the process

of interpretation. Originalists caution against over-reliance on early decisions and

applications of constitutional provisions, noting that while these may be evidence

of original public meaning, these cases do not constitute that original public mean-

ing.

165

Indeed, some versions of originalism suggest that, in cases of broadly worded

constitutional provisions, reliance on precedent is not relevant to discerning the

original meaning at all—it is, instead, part of constitutional “construction”—the

application of constitutional provisions to particular cases.

166

All of this introduces

further uncertainty and complication for time-pressured judges and attorneys.

The caution against defining prior meaning by reference to original or early

applications of provisions is further muddled if judges and courts try to delve into

how originalists decide whether an early decision should be used for interpretive

guidance. Originalists tend to caution against reliance on early applications in de-

termining original public meaning because those early applications may have been

based on mistakes of fact that have since been corrected.

167

Deciding where an early

decision relied on a mistake of fact or an outdated political view, though, isn’t an

easy task—even for originalists who are setting forth this guidance in the first place.

Lawrence Solum, for example, cites the case of Bradwell v. Illinois

168

as a case

that exemplifies an early application of a constitutional provision using mistaken

factual views.

169

Solum notes that the Court’s decision to uphold Myra Bradwell’s

exclusion from the Illinois bar on the basis of her gender, “could have been under-

stood as consistent with the [Fourteenth Amendment’s Privileges Or Immunities]

Clause by Justices who believe that women were intellectually incapable of func-

tioning as competent lawyers.”

170

He claims that an opposite result would have been

required if the Court had true beliefs about women’s intellectual capabilities.

171

Because fixed original public meaning can give rise to different outcomes given

changing beliefs about facts, modern day interpreters should not use the Court’s

ruling that women may be barred from the practice of law to support an interpreta-

tion of the original meaning of the Privileges or Immunities clause.

172

technology and relevant social structures may certainly complicate this analysis. See ERIC

J. SEGALL,ORIGINALISM AS FAITH 153–54 (2018) (noting the difficulty of taking an originalist

approach to the Fourth Amendment’s prohibition of unreasonable searches and seizures in

light of changing technology and the nature of modern police forces that did not exist at the

time of the founding).

165

See Solum, Triangulating Public Meaning, supra note 13, at 1664; WURMAN, supra

note 38, at 39–40; see also Green, supra note 154, at 560.

166

See JACK M. BALKIN, LIVING ORIGINALISM 101 (2011).

167

See Green, supra note 154, at 560.

168

83 U.S. 130 (1873).

169

See Solum, Living Constitutionalism, supra note 8, at 1268–69; see also Solum,

Triangulating Public Meaning, supra note 13, at 1664–66.

170

Solum, Living Constitutionalism, supra note 8, at 1268–69.

171

Id.

172

See id. at 1268.

1092 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

But it is not at all apparent that the Bradwell opinion reflects a set of mistaken

factual views, as opposed to a set of outdated and sexist moral and political beliefs.

Solum appears to draw his conclusion that the Court had mistaken factual views

about women’s capabilities from the concurring opinion of Justice Bradley, who

indeed asserted that “[t]he natural and proper timidity and delicacy which belongs

to the female sex evidently unfits it for many of the occupations of civil life.”

173

This

could be viewed as an instance of a mistaken factual belief about women’s intellec-

tual capacities. But much of Justice Bradley’s discussion involves not factual, but

moral, political, and religious reasoning, including remarks such as:

• “Man is, or should be, woman’s protector and defender.”

174

• “The constitution of the family organization, which is founded in the

divine ordinance, as well as in the nature of things, indicates the domes-

tic sphere as that which properly belongs to the domain and functions

of womanhood.”

175

• “The paramount destiny and mission of woman are to fulfil the noble

and benign offices of wife and mother. This is the law of the Creator.”

176

These are not mistakes of fact—they are political opinions regarding women’s

proper role in society and the family. Accordingly, it is not so clear that the

Bradwell Court’s reasoning (again, as reflected in Justice Bradley’s concurring

opinion) was based on a mistake of fact rather than an outdated set of beliefs about

gender roles.

177

If changing political views are enough to invalidate a prior applica-

tion of a constitutional provision, it is unclear how originalism is different from the

“living constitutionalism” that originalists oppose.

178

Originalists’ failure to clearly

distinguish between which early opinions are based on mistakes of fact and which

are based on changing social norms makes it all the more difficult for courts and

attorneys to determine which early opinions should be avoided as evidence of

original public meaning.

173

Bradwell v. Illinois, 83 U.S. 130, 141 (1873) (Bradley, J., concurring).

174

Id.

175

Id.

176

Id.

177

Id. at 141–42.

178

Eric Segall raises this point as well in response to Solum’s reliance on Bradwell. See

Eric J. Segall, The Concession that Dooms Originalism: A Response to Professor Lawrence

Solum, 88 G

EO.WASH.L.REV.ARGUENDO 33, 40–41 (2020) (“The proper role for women

in our society, however, could just as easily be labelled by judges a values question, and what

really changed was, thankfully, society’s values. But any theory of constitutional interpreta-

tion that allows judges to apply the original meaning of the constitutional text differently

today than when ratified because the public’s values changed sounds a lot more like Living

Constitutionalism than Originalism.”).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1093

To the extent that originalists cannot provide a coherent explanation of why

original applications should be disregarded and when those applications should be

avoided, this uncertainty at the theoretical level makes implementation all but im-

possible. If originalists are unable to make this distinction clear in their academic

writing—free from the pressure of needing to render a decision in a timely fashion—it

is fantasy to assume that courts and attorneys will somehow be able to succeed

where scholars have failed.

C. Immersion

Another originalist method that Solum advocates is “immersion,” which he

describes as “requir[ing] the investigators to immerse themselves in the texts from

the relevant period in order to ‘train up’ their linguistic intuitions.”

179

A broader

description of the approach, which Solum disclaims to be “tentative” and a “pro-

posal for discussion at a preliminary stage” is:

The originalist method of immersion in the language of the period

consists in the researcher reading a wide variety of sources from

the relevant period. To count as immersive, the reading must draw

on sources that are representative of language use of the relevant

period. Such sources are not limited to writings directly relevant

to the Constitution, but should include sources such as diaries,

newspapers, broadsheets, novels, and letters. Immersion requires

a substantial period, months and years, not days and weeks.

180

Beyond this, Solum does not describe the method of immersion by identifying steps

that practitioners, judges, or even scholars should take.

181

Solum claims to describe the

method in greater detail—particularly when distinguishing his immersion technique

from approaches used by historians.

182

But, as will be addressed shortly, Solum’s

discussion is less a description of his method and more a description of the method’s

goals.

183

Other originalist scholars have not described the immersion technique.

184

Critics of originalism, however, note that immersion is necessary, and that

proponents of originalism fail to respect the technique.

185

Jonathan Gienapp, for

instance, notes:

179

Solum, Triangulating Public Meaning, supra note 13, at 1649.

180

Id.

181

Id.

182

Id. at 1652–53.

183

Id. at 1653–54.

184

Id. at 1681.

185

See Jonathan Gienapp, Constitutional Originalism and History, PROCESS:ABLOG FOR

AM.HIST. (Mar. 20, 2017), http://www.processhistory.org/originalism-history/ [https://perma

.cc/J5E5-VX2F].

1094 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

Words and concepts that appear in historical sources often bear

a superficial similarity to our own, but grasping what they actu-

ally meant in their original historical context requires first recon-

structing the foreign conceptual world from which they issued.

Keyword searches can never disclose this world (in fact, such

searches presuppose that this world is immediately accessible

and virtually identical to our own). But, as all historians know,

bringing this world into focus requires a much deeper level of

immersion. . . . In the case of the American Constitution, it

requires knowing how to think and reason as Founding-era

Americans did, knowing how to see the world as an original

constitutional reader would have. . . . It requires, in short, behav-

ing like a historian.

186

Originalist scholars do not seem to have taken this advice to heart. While this may

be inadvertent, the persistent lack of engagement between historians’ academic lit-

erature and originalists’ literature suggests that there may be a deeper disagreement

at play.

187

In any event, Solum’s minimal description of immersion will have to

suffice for now.

1. Courts and Attorneys Lack the Time for the Extensive Undertaking of Historic

Immersion

The first criticism of the method of immersion is that judges and their clerks

cannot readily engage in this method.

188

Solum admits elsewhere that contemporary

judges, lawyers, and even legal scholars are not immersed in the relevant “linguistic

culture of late eighteenth-century American English.”

189

He also acknowledges that

judges and their clerks lack the time to engage in proper immersion, because of time

limits on law clerks’ terms and the time they typically have to prepare bench memos

concerning particular cases.

190

Judges and clerks do not have “months and years” to

immerse themselves in a broad sampling of texts from the Founding Era (or the

186

Id. (internal footnotes omitted).

187

See Logan Everett Sawyer III, Method and Dialogue in History and Originalism, 37

L. & H

IST.REV. 847, 859–60 (2019).

188

See, e.g., David A. Strauss, Why Conservatives Shouldn’t Be Originalists, 31 HARV.

J.L. &. P

UB.POL’Y 969, 970 (2008) (“Especially in dealing with highly controversial issues,

ascertaining the original understandings will routinely require a thorough immersion not just

in the context of the specific debate but in the culture of the time. It is a lot to expect a busy

judge to do that competently, and it will be all too easy to seize on any evidence that supports

the view of the Constitution that the interpreter himself prefers.”).

189

Lawrence B. Solum, Originalist Methodology, 84 U. CHI.L.REV. 269, 284 (2017).

190

Solum, Triangulating Public Meaning, supra note 13, at 1674–75.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1095

Reconstruction Era, should a case involve a Fourteenth Amendment question or a

constitutional amendment as incorporated against a state).

Attorneys face similar time constraints. Many attorneys litigate a variety of cases,

and—with the possible exception of highly specialized counsel who work almost

entirely in constitutional litigation—cannot devote enough time to the extensive

project of immersion in the historical record without doing a disservice to the rest

of their clients. Beyond time constraints, attorneys face a further obstacle: for the

most part, someone needs to pay for the time that attorneys spend on their cases.

Certain clients with restrictive billing practices may limit research time in connec-

tion with particular matters as a manner of course.

191

The process of immersion is so involved that Solum himself states that he is not

certain if any legal scholars have achieved this method, noting that “it may well be

the case that we do not yet know what enrichments would emerge from immersive

study of the text.”

192

He acknowledges that whether immersion will result in “true

linguistic competence is a difficult empirical question.”

193

If no one has managed to

achieve sufficient immersion before—not even in the legal academic sphere—it is

a fantasy to suggest that attorneys or judges will do so successfully.

Additionally, it is unclear how successful immersion can ever be validated.

There is no way of knowing whether a deviation from past conclusions is a result

of evaluating the historic record incorrectly because of mistaken immersion, or an

instance of immersion identifying a mistake in the historic record. Additionally, if

Solum cannot identify scholars who have successfully accomplished the method of

immersion, it is unclear who will evaluate judicial efforts at immersion, and how

they will go about doing so.

2. The Danger of Goal-Oriented Immersion

A further problem with immersion is that it tends toward goal-oriented methodol-

ogy. Solum falls into this habit when he repeatedly defines the immersion method

by referring to the method’s goals.

194

For example, he attempts to distinguish originalist

191

One of the authors, in earlier years, practiced almost exclusively in insurance defense

and can attest that time limits on research were required by most insurance carriers’ billing

practice requirements. See also Ronald J. Clark, Avoiding the Minefields—The Ethical

Dilemmas Posed by the Attack on the Tripartite Relationship, Auto Liability and Coverage,

ULLIVANT HOUSER BAILEY PC 165, 167 (Nov. 2005), http://www.bullivant.com/files/DRI

-Avoiding-the-Minefields-The-Ethical-Dilemmas-Posed-by-the-Attack-on-the-Tripartite-Re

lationship.pdf [https://perma.cc/Y6YE-Q54V] (noting that Alabama’s State Bar Disciplinary

Commission issued an opinion indicating that an insurance company’s “Litigation Management

Guidebook” requirement that attorneys seek approval before conducting research for more

than three hours conflicted with attorneys’ independence of professional judgment, and noting

a similar opinion issued by the Rhode Island Supreme Court Ethics Advisory Panel).

192

Solum, Triangulating Public Meaning, supra note 13, at 1652.

193

Solum, Originalist Methodology, supra note 189, at 284.

194

Solum, Triangulating Public Meaning, supra note 13, at 1653–54.

1096 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

immersion from techniques employed by historians by emphasizing that originalist

immersion “aims to recover the communicative context of the constitutional text,”

while historical immersion typically has the goals of “construction of narratives that

illuminate causal connections and the discovery of the motives and aim of historical

actors.”

195

It is unclear how this distinction reveals any differences between originalists’

and historians’ methodologies, as the only difference that Solum emphasizes is the

end goal of each methodology.

196

The confusion continues as Solum attempts to address accusations of “law office

history” that are often leveled against originalist attempts at historic analysis.

197

Solum claims that the originalist method of immersion “has a specific structure,”

which “flows from the target at which the method is aimed—recovery of the original

public meaning of the constitutional text.”

198

Again Solum distinguishes this method

from historians’ methods, which “can aim at any number of goals,” and again Solum

equates a description of methodology with a mere reiteration of the method’s aims.

199

Solum’s response to historians’ immersive methods reveals additional problems

with the approach: it is impossible to know when immersion has been achieved, and

it is likely that the investigator’s biases will color the direction that immersive in-

vestigation takes and the determination that immersion has been sufficiently con-

ducted. For example, Solum differentiates originalist immersion from historians’

immersion.

200

Historians, Solum suggests, will tend to recreate the “life worlds” of

particular groups like working-class women, slaves, or recent immigrants.

201

Solum

asserts that “[i]mmersion in the life world of recent German immigrants in the late

eighteenth century is obviously a poor way to recover the communicative compe-

tence of speakers of American English during that same period.”

202

This glosses over

the fact that these recent immigrants were nevertheless members of the American

public at the time, and that their linguistic idiosyncrasies were part of (and likely

contributed to) the original public meaning of words and phrases at the time of the

founding. Solum’s same critique could apply to other neglected groups who should

not be ignored, such as enslaved persons, as well as the linguistic tendencies of the

Native Nations—some of which had representatives present in Philadelphia during

195

Id. at 1652–53.

196

See id. at 1652.

197

For examples of such criticism, see Saul Cornell, Heller, New Originalism, and Law

Office History: Meet the New Boss, Same as the Old Boss, 56 UCLA L. R

EV. 1095, 1111–12

(2009) (noting examples of scholars and judges using nineteenth-century texts as a means to

understand texts from the Founding Era, and describing how such a method ignores profound

changes that occurred in the interim);J

ACK N. RAKOVE,ORIGINAL MEANINGS:POLITICS AND

IDEAS IN THE MAKING OF THE CONSTITUTION 1110–11 (1997).

198

Solum, Triangulating Public Meaning, supra note 13, at 1674.

199

Id.

200

Id.

201

Id.

202

Id.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1097

the Constitutional Convention, and all of which would be affected by the outcome

of the Constitution’s ratification.

203

Indeed, it may be the case that some of those

idiosyncrasies support an alternate reading of a particular constitutional term or

phrase—one that may not be uncovered by an immersive method focused only on

sources or language thought to be relevant by a modern interpreter.

Solum’s goal-oriented formulation of immersion exemplifies the danger that

originalist interpreters will narrow their immersive process to focus on one targeted

provision and incorporate their goal of parsing the legal meaning of that phrase into

their investigation. Doing so may result in a disregard of “context, contingency, and

subtext,” and a failure to approach the text with a complete historical understanding.

204

The assumption that immersion in particular persons’ or demographics’ circum-

stances and language is “obviously” a poor manner of recovering the communicative

competence of speakers of the time assumes that some generalized interpretation

exists and may be discovered. But such an assumption is not at all obvious, poten-

tially untrue, and risks excluding relevant understandings of constitutional terminology

from the conclusions of constitutional immersion.

205

III. THE MISGUIDED SOLUTION OF OUTSOURCING

ORIGINALIST ANALYSIS TO ACADEMIA

Of the few scholars who recognize originalism’s implementation problems, a

consistent suggestion they offer is that legal scholars do the bulk of the research,

with the assumption that judges and lawyers will be guided by this work.

206

The

thinking goes that once we finally get to a point where academic scholarship has

fleshed out the original meaning of constitutional terms and be in a world where

judges and justices can consistently apply originalist methods.

207

203

See Mary Sarah Bilder, Without Doors: Native Nations and the Convention, 89 FORDHAM

L. REV. 1707 (2021).

204

See Stephen Feldman, Constitutional Interpretation and History: New Originalism or

Eclecticism?, 28 BYU J. P

UB. L. 283, 299 (2014) (criticizing originalists’ failure to approach

history to gain a contextual understanding of historic texts and statements).

205

For an extensive discussion about why relying on an oversimplified “reasonable per-

son’s” reading of the Constitution at the time of the founding is a misguided approach, see

generally id.

206

See Solum, Triangulating Public Meaning, supra note 13, at 1675, 1681 (noting that

while law clerks, judges, and attorneys have time constraints and may discount evidence that

does not favor the chosen conclusion, legal scholars can undertake expensive research);

CGINNIS &RAPPAPORT, supra note 33, at 198 (“[I]n a world dominated by originalism,

academics would work to create the knowledge that would improve the performance of

originalist judges and reinforce their inclination to be consistently originalist.”).

207

MCGINNIS &RAPPAPORT, supra note 33, at 198; see also RANDY E. BARNETT,RE-

STORING THE LOST CONSTITUTION:THE PRESUMPTION OF LIBERTY 116–17 (rev. ed. 2014)

(arguing that original public meaning of various terms can be discerned and claiming that recent

1098 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

This is not a solution. Leaving the bulk of originalist analysis to academics fails

to address the difficulties of implementation discussed above. But entrusting originalist

interpretation to legal academics makes a bad situation worse and undermines several

key normative motivations for adopting originalism in the first place, including the

arguments that originalism is consistent with democratic ideals and that originalism

lends some measure of constraint and predictability to constitutional law.

One may initially object to originalists’ suggestion that scholarship will guide

courts and practitioners by arguing that it is unrealistic to assume that practicing

lawyers and judges will turn to academic legal scholarship. The Supreme Court’s

citation of academic legal articles has been on the decline for over fifty years.

208

This

decline is not limited to the Supreme Court—as citation rates have dropped gener-

ally across federal courts as well.

209

Critics argue that academic legal writing is

disconnected from the work of practicing attorneys and judges—often accusing law

review articles of being overly theoretical.

210

Academic discussions of originalism

scholarship (much of which was authored by Barnett himself) now sheds light on the original

meaning of various constitutional amendments).

208

See Louis J. Sirico Jr., The Citing of Law Reviews By the Supreme Court: 1971–1999,

75 I

ND. L.J. 1009, 1011–13 (2000) (noting a “steady decline” in the number of Supreme Court

citations to legal periodicals in comparing the periods of 1971–73, 1981–83 and 1996–98,

even when the decreasing number of Supreme Court merit opinions is taken into account);

Brent Newton, Law Review Scholarship in the Eyes of the Twenty-First Century Supreme

Court Justices: An Empirical Analysis, 4 D

REXEL L. REV. 399, 404, 406 (2012) (noting a decline

in frequency of Supreme Court citations to law review articles in comparing citation rates

in the 1970s and 1980s with the time period of 2001 to 2011, and finding that only 37.1%

of Supreme Court opinions cited to law review articles).

209

See Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Ir-

relevant, N.Y. T

IMES (Mar. 19, 2007), https://www.nytimes.com/2007/03/19/us/19bar.html

[https://perma.cc/CP3P-4VJM] (noting that federal courts’ citations to the Harvard Law

Review dropped by over fifty percent from the 1970s to the 1990s). But see Eugene Volokh,

Are Law Reviews Useful to Courts?, V

OLOKH CONSPIRACY (Sept. 1, 2020, 4:30 PM), https://

reason.com/volokh/2020/09/01/are-law-reviews-useful-to-courts/ [https://perma.cc/3TJL

-EBFS] (performing a “quick search” for case citations to sources containing “L. Rev.” or

“L.J.” for the year 2019 and finding 3,724 cases, and concluding that this suggests that judges

“do find law reviews useful at least sometimes”). For a more nuanced and in-depth discussion

of federal court of appeals’ citation rates, see David L. Schwartz & Lee Petherbridge, The

Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study, 96 C

ORNELL

L.REV. 1345, 1363 (2011) (recognizing that there was an increase in the proportion of opinions

citing legal scholarship from the 1950s to the 1980s, followed by a decline and leveling-out

of this proportion into the 1990s and 2000s).

210

See Brent E. Newton, Preaching What They Don’t Practice: Why Law Faculties’

Preoccupation With Impractical Scholarship and Devaluation of Practical Competencies

Obstruct Reform in the Legal Academy, 62 S.C. L.R

EV. 105, 115–21 (2010); see also RICHARD

A. POSNER,DIVERGENT PATHS:THE ACADEMY AND THE JUDICIARY 42–45 (2016) (arguing

that “academic law [is] becoming esoteric” and that its unapproachability and impracticality

make of little use to judges).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1099

may well fall into this universe of overly theoretical work, especially if we are to

accept Lawrence Solum’s suggestion that a rigorous articulation of the theory of

originalism and justification for the theory require reference to at least ten separate

articles, not counting aspects of the theory that will be discussed in future work.

211

Despite all of this, the remainder of this section accepts originalists’ assumptions

that courts and practitioners will read and rely upon the writings of originalist legal

scholars. Even so, originalism is still impossible to implement and ends up under-

mining the goals of stability, predictability, and democracy. Indeed, reliance on the

output of legal academia, including its publication motivations and hierarchical under-

pinnings, injects further unpredictability and opacity into the interpretive process.

A. The Problems of Selecting Scholarship and Academic Advocacy

While originalists suggest that courts and attorneys may rely on academic

originalist research in implementing originalist methodology, they have little to say

about how practitioners should go about identifying and selecting scholarship to

use.

212

Originalism is the subject of a significant body of academic legal writing,

with multiple subtheories and variations.

213

Indeed, it has developed into a subdis-

cipline of constitutional law, with conferences,

214

symposia,

215

and institutes

216

devoted

to the theory. A Westlaw search of law reviews and law journals for “Originalism OR

originalist” results in 4,029 results.

217

Narrowing the search by hot-button constitutional

211

See Solum, Living Constitutionalism, supra note 8, at 1249–50 (describing various

elements of the foundation of originalism and the case for originalism as a constitutional theory,

and citing Solum’s published and unpublished scholarship elaborating on each element).

212

See id. at 1254.

213

See D.A. Jeremy Telman, Originalism: A Thing Worth Doing, 42 OHIO N.U. L. REV.

529, 549 (2016); see also Guha Krishnamurthi, False Positivism: The Failure of the Newest

Originalism, 46 BYU L. R

EV. 401, 403 (2021) (describing originalism as a “juggernaut” and

stating that it “pervades our constitutional discourse, and it has become a fort and font of

constitutional legitimacy”).

214

See 13th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress

Conference, U

NIV.SAN DIEGO SCH. L., https://www.sandiego.edu/events/law/detail.php?

_focus=81108 [https://perma.cc/ST3P-FZTX] (last visited Apr. 26, 2022).

215

See 2021 Originalism Symposium, THE FEDERALIST SOC’Y AT THE UNIV. OF VA.SCH.

OF L., https://fedsocatuvalaw.org/2021-originalism-symposium/ [https://perma.cc/3PQW

-9B73] (last visited Apr. 26, 2022).

216

Columbus School of Law Receives $4.25 Million Gift, CATH.UNIV.AM. (Apr. 26, 2021),

https://communications.catholic.edu/news/2021/04/law-originalism-gift.html [https://perma

.cc/UX2T-QKX6] (describing a $4.25 million donation to the Catholic University of America

Columbus School of law “to establish The Project for Constitutional Originalism and the

Catholic Intellectual Tradition”).

217

Based on a Westlaw Classic search of secondary sources, narrowed to law reviews and

journals, for “originalism OR originalist,” completed on May 3, 2021.

1100 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

topics is of little help, as adding “AND ‘second amendment’” results in 551 results,

and adding “AND abortion” results in 539 results.

218

This shouldn’t be a surprise. There are hundreds of law journals in the United

States.

219

Many thousands of pages of academic legal scholarship are published

every year.

220

Originalism, with its evolving theories and political relevance, is an

appealing topic to editors of law reviews and law journals. As a result, a glut of

originalist scholarship on nearly all constitutional provisions and amendments that

are likely to be the subject of litigation exists—much of which involves competing

conclusions by various scholars.

221

The sheer number of law journals, combined with their editorial practices,

increases the probability that insufficiently rigorous work will be published. Many

law journals are edited by law students, who lack the training—both legal and

historical—to ensure that detailed historical analysis accompanying originalist schol-

arship are adequately supported.

222

Highly ranked journals may find themselves

overwhelmed with submissions, meaning that they can be selective in who and what

they choose to publish. But journals with lower rankings, as well as specialty journals,

may find themselves strapped for submissions. Those articles they accept may soon

be lost, as authors use acceptances by lower-ranked journals to expedite their review

and acceptance by higher-ranked journals.

223

This may force editors to accept less

rigorous scholarship simply to ensure that they can fill a year’s volume.

On top of this, most editors of law journals are law students. Their lack of exper-

tise in the field of originalism, inability to confirm whether claims about history are

properly sourced or supported, and—like judges—their need to divide time and effort

among all of the articles being published in the overall volume make it more likely

that dubious claims will slip past their editorial scrutiny.

224

Editors may also be influ-

enced by factors beyond the quality of legal scholarship—including a motivation to

218

Both additional searches run as of May 3, 2021 and also narrowed to law reviews and

journals.

219

Newton, supra note 210, at 114.

220

Id.

221

See Telman, supra note 213, at 546–47 n.112–27 (surveying originalist literature on

numerous constitutional provisions and amendments).

222

See Martin S. Flaherty, Historians and the New Originalism: Contextualism, Historicism,

and Constitutional Meaning, 84 F

ORDHAM L. REV. 905, 912–13 (2015) (arguing that sub-

missions to student-edited rather than peer-reviewed journals results in there being “very

little to filter shoddy historical work”).

223

See Top Law Review Submission Tips for Authors: 2021 Edition, SCHOLASTICA (Jan. 27,

2021), https://blog.scholasticahq.com/post/law-review-article-submission-tips-for-authors/#

:~:text=Know%20when%20to%20expedite%20and%20how&text=First%2C%20for%20

a%20quick%20overview,to%20that%20offer%20is%20due [https://perma.cc/8RNU-2J6K]

(noting that expedite requests can help authors “push your article higher up the submissions

pile at some law reviews”).

224

See Blackman, supra note 158, at 58–59 (describing law students’ minimal exposure

to originalism).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1101

publish articles with dramatic conclusions or findings contrary to established con-

clusions with the expectation that this may prompt discussion and draw attention to

the journal, or at least increase citations as a result of criticism of the article. Once

a poorly researched, unsupported originalist article makes its way into publication,

there is little to stop judges or attorneys from relying on it, as the identification of

contrary scholarship and the recognition of the better claim is likely too much to

expect from practitioners lacking independent historical expertise.

Additionally, it is overly optimistic to assume that law professors will be free

of the advocacy that is to be expected of attorneys. To be sure, scholars, unlike parties’

attorneys, are not ethically obligated to zealously represent a particular side’s po-

sition.

225

But law professors have political views as well, and these views may skew

the results of their research in a particular direction.

226

And while law professors

with historical training, or those who work with historians, may be better situated

to undertake serious historic analysis, they may also be subject to similar biases and

goal-oriented investigations.

227

These biases may be difficult to spot when the

resulting research is presented as complex historic analyses.

The risk of bias influencing the results of academic research increases when legal

academics are faced with the unfamiliar task of performing historic research or

immersion into a certain time period. The biases, habits, and experiences of law pro-

fessors may end up causing professors to select sources that support their conclusions

even if those professors honestly believe that they are being objective. Academics’

biases are particularly likely to influence the legal system when legal scholars file

or sign amicus briefs before a court—which present the court with collections of goal-

oriented academic citations tied together by arguments in favor of a particular result.

Originalists themselves have all but admitted that selective use of scholarship

may help pursue particular policy goals. One of us has already noted one example

of this in the work by sitting Justice Alito while working in the Office of Legal

Counsel during the Reagan Administration.

228

In one of the memos that Alito

225

See MODEL RULES OF PRO.CONDUCT r. 1.3 cmt. (AM.BAR ASS’N 1983) (requiring a

lawyer to “act with commitment and dedication to the interests of the client and with zeal in

advocacy on the client’s behalf”).

226

See Adam S. Chilton & Eric A. Posner, An Empirical Study of Political Bias in Legal

Scholarship, 44 J. L

EGAL STUD. 277, 279, 288–91 (2015) (finding that the ideology of tenured

professors, as measured by contributions to candidates to political office, is correlated at a

statistically significant level with “the ideological valence” of those professors’ research).

227

This is, after all, what originalists claim. See Randy E. Barnett, Challenging the Priest-

hood of Professional Historians, V

OLOKH CONSPIRACY (Mar. 28, 2017), https://www.wash

ingtonpost.com/news/volokh-conspiracy/wp/2017/03/28/challenging-the-priesthood-of-pro

fessional-historians/ [https://perma.cc/2TQG-YWWY] (responding to a history professor’s

critiques of originalist methods by arguing, in part, that historians often approach their work

with a “presentist ideological agenda”); see also W

URMAN, supra note 38, at 100–02.

228

See ALEXANDER S. HILAND,PRESIDENTIAL POWER,RHETORIC, AND THE TERROR

WARS:THE SOVEREIGN PRESIDENCY 44 (2019).

1102 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

authored supporting the use of signing statements as a tool for expanding the power

of the president (and limiting the importance of legislative history for how courts

approach legal questions) he explicitly argued for a combination of selective liti-

gation, publication in law reviews, and opinion writing by the White House Office

of Legal Counsel to legitimize the use of Presidential Signing Statements.

229

Though

anecdotal, this example illustrates the extent to which treating originalism as an

academic endeavor isolated or insulated from political interests and career motiva-

tions understates the extent to which originalism is an ends-oriented practice that

judges begin long before they take the bench that could linger in their thinking.

The glut of legal scholarship, lack of meaningful barriers to publication, and risk

of author bias means that judges and attorneys will be able to pick and choose

scholarship that supports a particular conclusion in a case. The same problems with

the methods of studying the constitutional record and corpus linguistics therefore

arise once again, only with attorneys and judges selecting particular articles rather

than historic sources to fit a particular conclusion.

230

A few law professors may end up performing the diligent, immersive, unbiased

historical research that good faith originalist scholars hope will guide attorneys and

the courts. But this scholarship will likely be lost in the noise of other published

articles and overwhelmed as attorneys pick and choose sources that support their

goals. To the extent that the conclusions of those good faith efforts run counter to

the political and cultural interests that animate the interest in originalism, they may

be excluded in favor of more amenable scholarship. It is therefore unrealistic to

expect that reliance on academic research will result in quality originalist analysis

by courts and attorneys.

B. The Anti-Democratic Implications of Relying on Academic Originalist

Research

One of the normative considerations underlying originalism is that originalist

methodology is more democratic than alternative approaches. Originalists argue that

living constitutionalists are unconstrained by any interpretive theory and are more

likely to decide constitutional questions based on their political preferences.

231

229

Memo from Samuel A. Alito, Jr. to Litigation Strategy Working Group, U.S. Department

of Justice, Office of Legal Counsel (Feb. 5, 1986), https://www.archives.gov/files/news

/samuel-alito/accession-060-89-269/Acc060-89-269-box6-SG-LSWG-AlitotoLSWG-Feb

1986.pdf [https://perma.cc/JA2K-FDSL].

230

See Toler, supra note 156, at 20, 38 (noting that the Supreme Court, when citing to

sources in discussing history, tends to cite secondary sources far more often than primary

sources and that only a small fraction of those secondary sources were historical secondary

sources rather than legal secondary sources).

231

See Scalia, supra note 3, at 854; Justice Gorsuch Nomination Hearing, supra note 2,

at 4 (“I am not a conservative or libertarian but I do believe in originalism. Why is that? It

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1103

Originalists claim that originalism is more consistent with democratic value because

it constrains judges to implementing the original meaning of a Constitution or

Amendment adopted by a supermajority.

232

Leaving it to legal academics to do the heavy lifting of originalist analysis under-

mines the democratic values that originalism supposedly promotes. Originalists urge

that judges rely upon academic analysis of constitutional provisions and amend-

ments to discern the original public meaning of these provisions.

233

But this just

makes it more likely that judges will make decisions based on what law professors

say the original public meaning is, which results in the substitution of judges’ po-

litical inclinations with those of the academics the judges cite.

Originalists may argue that this claim is overblown and that judges can take

efforts to select high-quality, extensively researched, rigorous scholarship. But this

simply undermines democracy in a different way, as original public meaning will

not be determined by what legal academics in general claim, but only by what is

advanced by high-profile legal scholars who manage to publish in the most presti-

gious law journals.

1. Substituting the Preferences of Courts with Those of Professors

By relying on legal academic research to determine the original meaning of

constitutional provisions, judges will most likely end up substituting their own

biases for those of the scholars upon whom they choose to rely. There is no guaran-

tee that legal academics will engage in objective historic analysis in determining the

original public meaning of provisions. Indeed, in many cases, legal scholars’ po-

litical views will likely guide their analysis, the sources they choose, and lead them

to preferred conclusions.

234

is because I am convinced that giving judges the power to override the Constitution and

impose their own vision of constitutional law is dangerous for everyone.”).

232

Scalia, supra note 3, at 862, 864 (arguing that “originalism seems to me more compatible

with the nature and purpose of a Constitution in a democratic system,” and noting that

elections rather than constitutional guarantees ensure that current values are reflected in the

governance of a democratic society); K

EITH WHITTINGTON,CONSTITUTIONAL INTERPRETATION:

EXTUAL MEANING,ORIGINAL INTENT, AND JUDICIAL REVIEW 154–55 (1999) (arguing that

popular sovereignty “dictates the adoption of an originalist method of interpretation” as

originalism enforces “the terms of the known sovereign will” and thereby “protects a space

for a renewed exercise of popular constitutional deliberation”); see also R

OBERT BORK,THE

TEMPTING OF AMERICA 178 (1990) (“[T]o oppose original understanding and judicial nomi-

nees who insist upon it [is] profoundly antidemocratic.”). Whether the supermajorities that

adopted the original Constitution or earlier amendments are truly representative is a question

that originalists must address, but it is beyond the scope of this Article.

233

See Lawrence B. Solum, Originalist Theory and Precedent: A Public Meaning Approach,

33 C

ONST.COMMENT. 451 (2018) [hereinafter Solum, Originalist Theory and Precedent].

234

See Chilton & Posner, supra note 226, at 288–91.

1104 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

Law professors are, for the most part, not historians, and will choose what

sources they prefer, or at minimum have pre-existing familiarity with, to discern

original meaning. This step of source selection introduces an opportunity for biases

or preferred outcomes to influence the research process—either on a conscious or

unconscious level. Resorting to, or checking analysis, with corpus linguistics method-

ology does not guarantee that such goal-oriented analysis will be avoided, as ad-

vocates of corpus linguistics themselves may prefer certain sources or types of

documents over others—even if the ostensible goal of originalism is to uncover a

public meaning of a term or phrase.

235

Publication incentives may also undermine academic objectivity. To make their

findings appear more relevant to the busy student editors who are flooded with

article submissions, authors may be tempted to skew their research in support of a

particular conclusion or exaggerate their findings. Doing so may draw the attention

of law journal editors at the initial stage of review where the publication determina-

tion is made. It may also cause editors to think that the paper is more likely to be

cited by courts or in other work due to its purported relevant and groundbreaking

findings—which in turn will increase the prestige and ranking of the journal.

236

All

of this makes it more likely that scholarship will be published that does not accu-

rately reflect the original public meaning of the Constitution—which, in turn,

undermines the democratic value of applying originalist methods.

2. The Elitism of Attempted Quality Control

Realizing the dangers of academic advocacy and poor-quality research, judges

and attorneys may endeavor to seek out the highest quality originalist scholarship

they can find.

237

Given their time constraints and lack of independent historical

expertise, judges and attorneys will likely rely on simple metrics to determine what

scholarship is most reliable rather than a review and survey of the literature. An

article’s author and place of publication are two of the most readily available pieces

of information that busy judges and attorneys can identify in narrowing down what

scholarship they should review. By limiting their review of scholarship to only those

235

See Strang, supra note 79, at 1218–19 (arguing against claims that subcommunities

may not be represented in corpora by emphasizing that there should be a focus on how

communities interpreted the Constitution’s text rather than on terms or phrases as used within

such subcommunities).

236

See Ranking Methodology, WASH.&LEE SCH. L., https://managementtools4.wlu.edu

/LawJournals/Default3.aspx [https://perma.cc/8TMD-U5WR] (last visited Apr. 26, 2022)

(noting that Washington & Lee’s law journal ranking system relies upon searches of cases

and articles to determine how many citations there are to particular journals).

237

This, of course, assumes that judges and attorneys will not simply seek out whatever

scholarship that happens to support their own inclinations—an exceedingly generous and

unrealistic assumption.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1105

articles published by the most well-renowned scholars in the most highly ranked law

journals, courts and attorneys can ensure that the originalist analysis they rely upon

is most likely to reveal the original public meaning of whatever provisions are at issue.

This attempt at quality control, however, has profoundly undemocratic impacts

when implemented. If courts and attorneys limit themselves to only the most elite

authors and scholarship, their interpretation of the Constitution becomes based on

whatever the most elite law professors say it is and on what the most elite law

reviews decide to publish.

By relying only on what is written and published by those in the most elite

academic circles, courts and attorneys risk a small, elite set of inputs which risks the

biases and preferences of these elite sources coloring the outcomes and analysis of

constitutional provisions.

238

A similar outcome occurs if courts limit citations to

peer-reviewed scholarship, as much of this content is behind paywalls that require

expensive subscriptions that are often only paid by academic institutions and

libraries. Citing to these sources (assuming that courts can even get access to them

in the first place) further removes judicial reasoning from the democratic process by

making it prohibitively expensive for members of the general public to delve into

the sources and citations bolstering courts’ conclusions.

Law professors and the editors of law journals are not elected representatives,

and there is little holding them accountable for the scholarship that they write.

Indeed, originalist scholarship on politically charged amendments or constitutional

provisions tends to give rise to separate, self-supporting camps of academics in

support of opposing interpretations of constitutional provisions. While each camp

of academics criticizes those in the other camp, academics within each camp cite

and elaborate on the conclusions of their like-minded colleagues, giving the appear-

ance of well-supported scholarship in favor of diametrically opposed interpretations

of original meaning.

239

If legal academics can produce research that they know will

238

See Lawrence Baum & Neal Devins, Why the Supreme Court Cares About Elites, Not

the American People, 98 G

EO. L.J. 1515, 1566–67 (noting Supreme Court law clerks’ incli-

nation to give close attention to amicus briefs filed by academics—particularly prominent

academics—and arguing that Justices may be influenced by the contents of such briefs); see

also Eric Segall, Supremely Elite: The Lack of Diversity on our Nation’s Highest Court,

A.B.A. (Dec. 31, 2015), https://www.americanbar.org/groups/crsj/publications/human_rights

_magazine_home/2015--vol--41-/vol-41-no-1-lurking-in-the-shadows-the-supreme-court/su

premely-elite--the-lack-of-diversity-on-our-nations-highest-co/ [https://perma.cc/6FQM-XYRU]

(arguing that the Supreme Court is a “cloistered, secretive, elite, and intellectually and so-

cially removed institution” and that this results in a failure to perceive the impact of the Court’s

decisions on the public at large and fosters siding with “big-moneyed interests or govern-

mental defendants against everyday folks”).

239

Debates over the original public meaning of the Second Amendment—particularly

whether the Second Amendment protects an individual right to keep and bear arms—are a

ready example of this. See Telman, supra note 213, at 548 (noting that the majority and

dissenting opinions in District of Columbia v. Heller relied on identical interpretive methods,

1106 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

likely be published somewhere, and will find a certain level of support and citations

within a group of like-minded academics, there is little to check low-quality, results-

oriented originalist scholarship. Reliance on academic originalist research therefore

puts constitutional interpretation through an undemocratic, unchecked, and often

biased black box, and in doing so abandons the democratic reasons for accepting

originalism as an interpretive theory in the first place.

C. Relying on Legal Academic Research Risks Instability and Uncertainty in

Judicial Decisions

As noted above, originalists often juxtapose their theory with the alternative of

“living constitutionalism” to claim that originalism prevents judges from imposing

their own moral and political views in making their decisions.

240

One of the claimed

benefits is that this approach constrains judges to render decisions based on the

original public meaning of constitutional provisions is that this approach makes

things more consistent and predictable.

241

If judges are deciding cases on the basis

but arrived at the opposite conclusions regarding the meaning of the Second Amendment).

For scholarship supporting the individual right, see generally, e.g., Nelson Lund, The Second

Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. R

EV. 1343 (2009) (arguing

that the original meaning of the Second Amendment supports an individual right to keep and

bear arms for self-defense, but criticizing Justice Scalia’s methodology used to reach this

conclusion in Heller); Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned

on Service in an Organized Militia?, 83 T

EX.L.REV. 237 (2004). For scholarship in the

opposing camp, see, e.g., Saul Cornell, Originalism on Trial: The Use and Abuse of History

in District of Columbia v. Heller, 69 O

HIO ST.L.J. 625, 626 (2008) (criticizing Randy Barnett’s

praise for Justice Scalia’s opinion in District of Columbia v. Heller, arguing that the historical

methodology in the opinion was lacking, and criticizing Barnett for failing to realize that

“most historians are militantly anti-originalist”); William G. Merkel, The District of Columbia

v. Heller and Antonin Scalia’s Perverse Sense of Originalism, 13 L

EWIS &CLARK L. REV.

349, 350–52 (arguing that the longstanding view that the Second Amendment did not protect

the right to keep or bear arms in a capacity unconnected with service in a militia was chal-

lenged by “a phalanx of gun rights advocates, single-topic academics, and contrarian and

clever constitutional theorists” and criticizing Justice Scalia’s majority opinion in Heller as

“objectively untenable” from “the standpoint of an academically trained historian”); Paul

Finkelman, It Really Was About a Well Regulated Militia, 59 S

YRACUSE L.REV. 267, 280–82

(2008); Jack N. Rackove, The Second Amendment: The Highest State of Originalism, 76 C

HI.

ENT L. REV. 103, 161–65 (2000). Academics are also divided over originalism and is im-

plications for the nondelegation doctrine. Sachs, supra note 158, at 801, n.160.

240

See Lund, supra note 239, at 1345.

241

See Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication:

Three Objections and Responses, 82 N

W.U.L.REV. 226, 286–87 (1988) (arguing that original

intentions originalism is “about as stable and objective as human beings can contrive”);

Randy E. Barnett, An Originalism for Nonoriginalists, 45 L

OY.L.REV. 611, 641 (1999) (noting

that the fact that the constitution is in writing assures that those “provisions will be respected

over time—an assurance that an unwritten constitution or a written constitution that can be

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1107

of fixed original public meanings rather than policy preference, this should lead to

a stable, consistent, and predictable set of outcomes.

1. Originalism and Precedent: An Ongoing Debate

A common critique of originalism is that originalism undermines predictability

and stability in the legal system by requiring the reversal of precedent that originalists

deem inconsistent with the original public meaning of the Constitution.

242

Such an

approach is contrary to the principle of stare decisis—that past precedent should be

followed in similar cases in the future. Requiring the reversal of precedent creates

the risk of upheaval and instability—particularly if the precedent at issue has been

in place for a long time, if the non-originalist interpretations in prior opinions have

given rise to a substantial body of case law and practices, or if the government or

public has grown to rely on the precedent and its implications.

Originalists have various responses to this critique. Some falter in the face of

precedent, characterizing stare decisis as an exception to originalist practice.

243

Others try to find workarounds, with some arguing that originalists should follow

non-originalist precedents where such precedent has longstanding support by the

legislative branch,

244

where such precedents would be enacted through constitutional

amendment were they overturned,

245

or where overturning non-originalist precedent

would result in “enormous costs.”

246

Others try to minimize the problem, arguing

that leaving non-originalist precedents in place is not the same as accepting the

decisional theories of those decisions, that precedent applying non-originalist methods

may be acceptable if it reaches the same results, or that originalists may use the

“avoidance canon” to avoid overturning incorrect precedent.

247

Others work to

portray precedents that may be characterized as non-originalist as consistent with

freely modified by legislative practice or judicial opinion cannot provide”); see also Mitchell

N. Berman, Originalism Is Bunk, 84 N.Y.U. L. R

EV. 1, 38 (2009) (noting that stability and

predictability are two of several values that originalists cite in support of originalism).

242

See Berman, Originalism Is Bunk, supra note 241, at 78.

243

ANTONIN SCALIA,AMATTER OF INTERPRETATION:FEDERAL COURTS AND THE LAW

138–40 (Amy Gutmann ed., 1997).

244

See Kurt T. Lash, Originalism, Popular Sovereignty, and Reverse Stare Decisis, 93

A.L.REV. 1437, 1475 (2007).

245

See John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent,

103 N

W.U.L.REV. 803, 837–38 (2009) (using Brown v. Board of Education as an example).

246

See id. at 836–37 (using Supreme Court cases upholding Social Security and the gov-

ernment’s ability to tender paper money as examples of cases, which if overturned, would

result in chaos).

247

See Amy Coney Barrett, Originalism and Stare Decisis, 92 NOTRE DAME L. REV. 1921,

1939–41 (2017). But see Amy Coney Barrett, Precedent and Jurisprudential Disagreement,

91 T

EX.L.REV. 1711, 1728 (2013) (“I tend to agree with those who say that a justice’s duty

is to the Constitution and that it is thus more legitimate for her to enforce her best understanding

of the Constitution rather than a precedent she thinks clearly in conflict with it.”).

1108 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

original public meaning.

248

Others bite the bullet, arguing that non-originalist

precedent should be overturned in almost all cases.

249

A complete discussion of originalism’s implications for non-originalist prece-

dent, the instability and unpredictability that originalism raises, and originalists’

varied defenses against this issue is beyond the scope of this Article. We will,

however, raise a few points questioning these attempts at defense.

First, the originalist arguments regarding upholding well-established precedents,

or precedents upon which society, or a substantial subset of society has come to rely,

introduce opportunities for judges to make decisions on normative or political con-

siderations independent of original public meaning. Originalists argue that their

theory is not motivated by political goals—indeed, originalism, if properly applied,

can result in both conservative or liberal outcomes.

250

But determinations as to

whether a precedent has been around for a sufficient period of time or whether

people have come to rely on the precedent present opportunities for political reason-

ing to influence the decision of whether to overturn a non-originalist precedent or

whether to selectively apply originalism.

251

Should originalism require the overturning

of a precedent that a judge favors, the judge may determine that it is not appropriate

to overturn that precedent, citing reliance on the precedent or emphasizing other

similar opinions to support the claim that the precedent is well-established. As a result,

judges may selectively apply originalism to reach their preferred policy outcomes.

Second, several of the defenses appear to be attempts by originalists to avoid or

minimize the problem by suggesting how originalists may avoid conflicts between

originalist methodology and non-originalist precedent.

252

Now-Justice Amy Coney

Barrett’s responses in particular exemplify this tactic, as she suggests that original-

ism’s conflict with non-originalist precedent is not a significant concern because

these conflicts can be sidestepped through the canon of non-avoidance and the

notion that not addressing a non-originalist precedent does not concede the reasoning

248

See generally Michael W. McConnell, Originalism and the Desegregation Decisions,

81 V

A.L.REV. 947 (1995) (arguing that Brown v. Board of Education is consistent with the

original public meaning of the Fourteenth Amendment).

249

See Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as

It Sounds, 22 C

ONST.COMMENT. 257, 258–59, 266 (2005) (arguing that originalism provides

a normative argument to reject precedent where precedent conflicts with original meaning, al-

though suggesting that “properly tailored” claims that citizens have relied on non-originalist

precedent may warrant upholding those precedents—listing Social Security as one such ex-

ample); Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 A

MARIA L. REV. 1, 20–21 (2007) (arguing that courts are very rarely obligated to overturn

non-originalist precedent, and that non-originalist precedents should only be left in place if

judges in the prior case “honestly applied sound methodologies”).

250

See Solum, Originalist Theory and Precedent, supra note 233, at 250–59.

251

Originalists recognize this concern. See Barnett, supra note 249, at 266 (acknowledging

that reliance interests may warrant refusal to overturn a non-originalist precedent, but noting that

arguments about reliance interests are often spearheaded by interest groups and are overblown).

252

See Barrett, Originalism and Stare Decisis, supra note 247, at 266.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1109

of that precedent.

253

One response to this defense is that these tactics are invalid

attempts to avoid the hypothetical, and that they fail to address the cases where

originalists must truly reckon with non-originalist precedent. Another response—

one that is more relevant to the implementation problems this Article raises—is that

these attempts to minimize the apparent conflict between originalism and non-

originalist precedent admit the problem with a thorough originalist approach by

conceding that originalism should not be applied in cases where it might undo non-

originalist precedent. If that is the case, then originalism will only make a difference

in cases of first impression, as a strong commitment to avoiding overturning prece-

dent will leave non-originalist precedent standing and may not even warrant the

application of originalist methodology if a prior opinion’s non-originalist methodol-

ogy reaches an acceptable result.

2. Exacerbating Uncertainty Through Reliance on the Academic Literature

Whatever the outcome of the debate over precedent may yield, originalists’

grappling with precedent and stare decisis in implementing their theories demon-

strates that the need for stability and predictability in a theory is an important

consideration. Unfortunately for originalists, their proposal that courts and attorneys

rely on academic originalist research makes it even more likely that prior precedents

will be undermined. Indeed, precedents that are ostensibly originalist may need to

be abandoned if later developments in academic research reveal that the scholarship

on which the prior court relied was mistaken or incomplete.

The realities of legal scholarship make this a probable outcome. Legal academ-

ics may uncover historic sources that have not yet been applied in the literature, and

this may change the landscape of how certain constitutional provisions or amend-

ments are interpreted. This may become more likely as interdisciplinary specializa-

tion in legal academia becomes more widespread and more scholarly writers begin

to have master’s or doctoral degrees in history or related disciplines.

254

Moreover, should corpus linguistics analysis continue to be a significant part of

originalist methodology, it has the potential to amplify the unpredictability of academic

originalist scholarship. Corpus linguistics analysis in originalist academia and

debates is a fast-evolving component of the field. As more scholars begin to rely on this

methodology, the landscape of originalist scholarship will likely change—injecting

253

See id. at 1939–41.

254

See Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65J. LEGAL EDUC.

506, 507, 540 (2016) (noting a sharp increase in the hiring of law professors with doctoral

degrees and predicting that more than half of the faculty members of law schools will have

PhDs by 2028); cf. Stephen G. Breyer, The Uneasy Case for Copyright: A Look Back Across

Four Decades, 79 G

EO.WASH.L.REV. 1635, 1635 (2011) (in which Justice Breyer reminisces

that the reason he had authored a particular law review was because he wanted tenure and

that “[t]hose were the days when you just had to write one article” to get tenure at Harvard

Law School).

1110 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

further instability into the opinions that ultimately rely on this scholarship in reaching

their originalist conclusions.

Scholarship on the Second Amendment is an example of such disruption.

Corpus linguistics may undermine the Court’s opinion in District of Columbia v.

Heller,

255

a precedent that some originalists hail as one of the most prominent

examples of originalism in practice.

256

While Justice Scalia, in his majority opinion,

cited a number of historic sources, he did not engage in corpus linguistics analysis

in reaching his conclusion that the Second Amendment protects an individual right

to keep and bear arms.

257

Subsequent corpus linguistics research suggests that, as a

result, Justice Scalia’s conclusion that the Second Amendment protected an individ-

ual right to keep and bear arms—rather than a collective right—was mistaken.

258

Academics have signed onto amicus briefs that channel corpus linguistics research

into legal arguments before the Supreme Court in cases regarding the scope of the

right to carry firearms, urging the Court to reevaluate Heller’s findings in light of

this new evidence.

259

All of this demonstrates how further originalist research using

corpus linguistics analysis may destabilize prior precedents—even those precedents

which are generally recognized as examples of originalist reasoning.

Corpus linguistics analysis further exacerbates uncertainty as a result of techno-

logical advances and as the databases (or “corpora”) from which searches draw

continue to expand. The corpora that include founding-era sources (as well as

reconstruction-era sources) are still under development and will likely continue to

develop as further collections of documents are added. With each additional docu-

ment, each corpus becomes more representative, yet this creates a chance that the

results of identical searches of a single corpus may produce different results at dif-

ferent periods of time. Expansion of corpora is necessary—at least for any originalist

255

554 U.S. 570 (2008).

256

See Randy E. Barnett, The Gravitational Force of Originalism, 82 FORDHAM L. REV.

411, 412–13 (2013); see also Randy E. Barnett, Scalia Restored Right to Bear Arms: Randy

Barnett, USA T

ODAY (Feb. 17, 2016, 7:00 AM), https://www.usatoday.com/story/opinion

/2016/02/17/randy-barnett-antonin-scalia-new-originalism-heller-second-amendment-column

/80450446/ [https://perma.cc/E5LW-PCJK] (describing Justice Scalia’s opinion as “sweeping

and masterful”).

257

See generally Heller, 554 U.S. 570.

258

See Kyra Babcock Woods, Note, Corpus Linguistics and Gun Control: Why Heller Is

Wrong, 2019 BYU L. R

EV. 1401, 1414–23 (2020) (analyzing corpus linguistics data regarding

the phrases, “bear arms,” “keep arms,” and “the right of the people” and concluding that the

results supported Justice Stevens’s dissent that these terms were typically used in a militia-only

context, rather than in the context of describing an individual right).

259

See, e.g., Brief for Corpus Linguistics Professors and Experts as Amici Curiae Supporting

Respondents at 17–27, N.Y. State Rifle & Pistol Assoc., Inc. v. City of New York, 140 S. Ct.

1525 (2020) (No. 18-280), 2019 WL 3824697 (relying on corpus linguistics analysis not

available during prior Supreme Court rulings on the scope of the Second Amendment and

arguing that the Second Amendment does not protect an individual right to carry firearms).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1111

who wants corpus linguistics analysis to result in findings that are truly reflective

of the founding-era public—as the founding-era database, COFEA, currently lacks

documents and language of nonelite people.

260

Additionally, if scholars begin to

apply algorithms to their searches in trying to bolster their preferred conclusions or

make the process of researching more efficient, this could further destabilize schol-

arship by producing a whole new set of results upon which courts may rely.

If courts were to follow through with the suggestion that they be guided by

academic originalist literature, constitutional law in America would find itself not

just governed by whatever academic theories are in vogue, but potentially changing

with each generational update of the major corpus linguistics databases. Predictabil-

ity and stability would vanish, replaced by an originalist doctrine that evolves as

databases of founding-era speech become more thorough. Such a reality would place

legal academics at the helm in guiding the constitutional law that affects hundreds

of millions of people. This may be appealing to scholars, but those millions affected

may not be as enthusiastic about such an outcome.

D. Potential Responses

While most academic originalists tend to avoid discussion of how originalist

theory may be implemented, Stephen Sachs addresses the issue in some detail in his

article, Originalism: Standard and Procedure.

261

Rather than treating originalism as

a procedure for courts and attorneys to follow, Sachs argues that originalism should

be treated as a standard by which decisions and actions should be measured.

262

Indeed,

Sachs argues that demanding that originalism provide guidance for courts and at-

torneys is a “category error,” and an obstacle that originalists need not address at all.

263

For a response that is a little less theoretical, in confronting objections that

originalism may undermine stare decisis and upend precedent, Lawrence Solum

proposes a deferential approach to prior decisions that attempt to apply originalist

methods in good faith.

264

While Solum’s response is limited to the issue of precedent

rather than the varied implementation problems we address in this Article, the point

may be adapted to apply to our critique.

265

Accordingly, we address this potential

counter-argument, along with Sachs’ argument, below.

260

See Drakeman, supra note 80, at 86–87 (noting that COFEA is skewed toward elite

speech patterns in light of the documents it contains, and emphasizing that it may not even

completely represent elite speech patterns); see also Matthew Jennejohn et al., Hidden Bias

in Empirical Textualism, 109 G

EO. L. J. 767 (2021). For a thorough account of originalism’s

need to take into account more diverse viewpoints, see generally Christina Mulligan, Diverse

Originalism, 21 J. C

ONST. L. 379 (2018).

261

See generally Sachs, supra note 158.

262

See generally id.

263

Id. at 787.

264

See Solum, Originalist Theory and Precedent, supra note 233, at 466.

265

See id. at 466.

1112 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

1. Treating Originalism As a Standard, Rather Than a Procedure

Sachs starts off his article by acknowledging up front that critics of originalism

argue that judges and attorneys are bad at performing history and that originalism

is therefore not effective at offering answers to these actors.

266

To address this, Sachs

draws from the discipline of philosophy and argues that originalism should be treated

as a standard for correct decisions rather than as a procedure for reaching those

correct decisions.

267

For example, the ethical theory that one should act in a manner

that maximizes positive outcomes may be difficult to implement—as consequences

of actions may be unpredictable and complex, particularly in the long term.

268

But

the lack of a clear procedure for acting does not mean that one should not strive to

maximize positive consequences, or that this standard may still be used to determine

whether a particular action was ethical or unethical.

269

Sachs argues that originalism,

which he appears to define as the notion that “our law is the Founders’ law, as law-

fully changed,” should be treated as a standard, rather than a procedure.

270

Even if

the method of determining the historic meaning of the Constitution is hard to do,

“the standard is the standard.”

271

Sachs acknowledges that this distinction “might not persuade those who find

originalism too theoretical already,” but contends that scholars must go where the

arguments lead them and that the truth may not end up being simple.

272

His instincts

are correct. While this argument may preserve originalism on some theoretical level,

it is more of a dodge than a response to the problems of implementing originalism—

primarily because it does not confront the objection that the standard of originalism

itself necessarily leads to implementation problems. In cases where the text does not

give a readily determinable answer—the cases where the choice of methodology is

of highest importance—figuring out the original public meaning, or figuring out the

“Founders’ law,” involves difficulties that render the theory useless in practice.

Even evaluating decisions after the fact is a muddle because the historic investiga-

tion necessary to state whether the originalist standard is met is too complicated for

commentators and academics to undertake.

273

While Sachs’ approach is likely too nuanced to gain a substantial following in the

political or judicial sphere—at least in the near future, his own article demonstrates

how treating originalism as a standard would likely give rise to poor implementation

266

Sachs, supra note 158, at 779–80.

267

Id. at 779, 787.

268

Id. at 778, 788.

269

Id.

270

Id. at 790.

271

Id.

272

Id. at 787.

273

Competing evaluations over whether the Supreme Court’s opinion in District of Columbia

v. Heller was correct are but one example of this. Compare Barnett, supra note 256, at

412–13, with Cornell, supra note 239, at 626, and Woods, supra note 258, at 1414–23.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1113

practices.

274

For example, Sachs confronts a recent study by Lorianne Updike Toler

in which she concludes that Supreme Court Justices tend to employ poor historical

methodology when deriving the original meaning of the Constitution.

275

Sachs takes

issue with criticizing Justices for failing to cite enough historic sources—arguing

that citation practices do not indicate that the Justices failed to consider those sources

in rendering their opinions, and that judicial opinions need not justify the conclu-

sions they reach to the extent as scholarly treatments of similar subjects.

276

Sachs

goes on to argue that it is wrong to suspect Justices to “delve as deeply into the

records as scholars would,” suggesting that it is enough that Justices read the briefs

filed to the Court, so long as those brief writers have read the scholars.

277

This,

Sachs concludes, is not consistent with “ideal research methods,” but should be

instead judged by “whether it’s good enough for government work.”

278

These revealing claims (relegated to the subsection just before the article’s

conclusion) bring Sachs’ theoretical article squarely into the universe of scholarship

that this Article critiques. Even if originalism is meant to be a standard, rather than

a procedural guide, for judges and attorneys, it necessarily requires a determination

of the original public meaning of the constitutional text in order for the standard to

have any bearing on reality. Our Article demonstrates that, in cases where the text

is vague or under determinative (read: the cases where applying an originalist

standard will be of any importance whatsoever), that determination cannot be made.

Originalism as a standard necessarily leads to this outcome.

Moreover, as addressed at length above, Sachs’ suggestion that attorneys read

the scholarship and include that in their briefs is no solution at all.

279

And, as Sachs’

own arguments demonstrate, treating originalism as a standard rather than a proce-

dure invites courts to issue unjustified, shoddily researched opinions with the excuse

that courts need not be as thorough as scholars.

280

We are not convinced, as it is

courts—not scholars—whose determinations have a direct impact on the parties

before them, along with a broader impact on others in similar situations. If treating

originalism as a standard justifies outcomes where courts throw up their hands and

say their decision is “good enough for government work,” it is a standard that should

not be used in the first place.

2. Deference to Prior Originalist Decisions

One potential way to avoid unpredictability that may be caused by changing

academic findings on original meaning may be to avoid overruling precedent in which

274

See generally Sachs, supra note 158.

275

See id. at 827, citing and discussing Toler, supra note 156.

276

See id. at 781, 828–29.

277

See id. at 828–29.

278

See id. at 828.

279

Supra Section III.B.1.

280

See Sachs, supra note 158, at 829.

1114 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

the prior court applies originalist methodology. Lawrence Solum suggests that such

decisions may be subject to a heightened level of deference.

281

If a court at the same

level of authority reached a prior opinion that may have been mistaken about the

original public meaning of a constitutional provision, but made a “good faith attempt

to determine the original meaning of the constitutional text,” that precedent may be

preserved until “clear and convincing evidence [has] produced a substantial consen-

sus that there had been an error.”

282

Gary Lawson appears to advocate a similar

approach by suggesting that precedents in which the prior court had “carefully and

honestly applied sound methodologies” may be entitled to some weight.

283

This solution is flawed. The numerous qualifications required to rely on prior,

potentially erroneous precedent make this approach difficult to operationalize and

invite goal-oriented discretion. Courts confronting precedents that they determine

may have applied incorrect (or potentially incorrect) interpretations of originalist

public meaning must make an array of determinations, including whether the prior

court applied appropriate methodology “honestly” or in “good faith.” The undefined

nature of this test means that court may treat the precedent with genuine deference

(applying, for example, an approach similar to abuse of discretion), or that they may

determine that the analysis, sources, or both upon which the prior opinion was based

are so unreliable that the method is undeserving of respect.

A similar issue arises with Solum’s suggestion that courts apply a “clear and

convincing evidence” standard—a burden of proof that falls between the lesser

“preponderance of the evidence” (or “more likely than not”) standard, and the more

demanding “beyond all reasonable doubt” standard commonly employed in criminal

prosecutions.

284

While this is a standard that is applied to particular questions of fact

in certain types of cases, it is out of place in the originalist context of interpreting

law. How precisely a standard of proof used to evaluate evidentiary sufficiency in

legal proceedings is to apply at the legal interpretive level is a question that originalists

have not yet answered—and a question that will likely cause headaches and confu-

sion if it is to be implemented.

Beyond this, originalists’ appeal to deference does not bode well for their theory.

One would think, for all the ink that has been spilled in support of originalism, its

virtues, and its variations, that this is a theory worth implementing. But urging defer-

ence in the face of precedent limits the practical impact of the theory. This response

(like the originalist responses to the problem of precedent addressed above) ad-

dresses a problem of implementation not by suggesting how originalism may be

281

Solum, Originalist Theory and Precedent, supra note 233, at 466.

282

Id.

283

Lawson, supra note 249, at 19.

284

See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or

Constitutional Guarantees?, 35 V

AND.L.REV. 1293, 1328–29 (1982) (describing the results of

a survey of 170 federal judges’ interpretation of the probability required to meet the “clear and

convincing” burden of proof that found that both the median and average percentage was 75%).

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1115

practically implemented in certain situations, but by suggesting how originalism’s

implementation can be curtailed to avoid unpleasant or disruptive results.

If this is the approach that originalists want to take, the theory is in trouble. This

Article demonstrates the myriad of implementation problems that originalism faces.

These problems arise for multiple originalist methodologies: studying the constitu-

tional record, immersion, and corpus linguistics. If originalists’ response to these

implementation problems is to place limitations on when originalism may be applied,

then we may never see courts apply these theories.

ONCLUSION:DEALING WITH ORIGINALISM’S IMPLEMENTATION PROBLEM

If we were writing an article on how originalism can be improved or saved from

its shortcomings, this would be the all-too-short part of the paper where we make

underdeveloped suggestions on how originalism may be salvaged. But that is not our

goal. Our purpose is to demonstrate that the theories expounded in academic origin-

alist circles are largely, if not entirely, impossible to implement. These theories may

have numerous components and variations, they may generate numerous articles and

responses, and they may create a self-sustaining subdiscipline of self-referential

scholarship on fixation, constraint, construction, and whatever other layers originalists

think should be added to the analysis. But in the end, none of this matters if courts

cannot implement these complex, unworkable theories.

Originalists may object to this. They may tell us that it takes a theory to beat a

theory—overlooking the failure of originalism to constitute itself as a functional

theory.

285

They may claim that originalism is a—if not the—dominant theory of

constitutional interpretation now, and that it is not simply enough to criticize it—one

must offer up a compelling theory to take its place.

There are several responses to this. First, we can assert that such an alternate

theory is beyond the scope of this Article.

286

Our purpose here is to demonstrate how

academic discussions of originalism are incomplete because the theories propounded

cannot be implemented. We have done that.

Second, we can point to what may well be a preferable alternate theory: rather

than being bound by the original public meaning of the Constitution or its amend-

ments, courts should be bound by present public meaning. Such an alternate theory

285

See Scalia, supra note 3, at 855 (“It is not enough to demonstrate that the other fellow’s

candidate (originalism) is no good; one must also agree upon another candidate to replace him.”).

286

Solum, Triangulating Public Meaning, supra note 13, at 1629, 1632 n.18, 1641 n.42,

1652, 1673 (stating that “an originalist account of constitutional construction,” “[a] full

account of the relationship between history and originalism,” “[a] full telling of the law-

office history debate,” the “difficult” question of “how public meaning originalism should

handle cases of ‘public-meaning versus technical meaning ambiguity,’” and “discussion of

the relevant history” of the narrow scope of “freedom of the press” are all beyond the scope

of the article).

1116 WILLIAM &MARY BILL OF RIGHTS JOURNAL [Vol. 30:1063

has been suggested occasionally in the context of originalist theorizing.

287

In the

context of this Article’s criticism, the present public meaning approach seems

appealing—it avoids the need for the complicated and goal-oriented method of

studying the constitutional record and the undefined, unworkable method of immer-

sion. It likely leads to much more thorough and representative corpus linguistics

analysis, as the internet enables the construction of corpora that are magnitudes

more extensive and representative than those available for founding-era language.

And it better prevents scholars, advocates, and courts from reaching politically

motivated conclusions by modernizing the basis for interpretation—allowing the

general public to check or speak out against mistakes, rather than letting courts hide

behind a curtain of selective historic citations. As for concerns about linguistic drift,

this can be minimized by reading the text of the Constitution as a whole with an eye

to relevant context thereby avoiding absurd results that originalists flag.

288

Third, originalists’ claim that it takes an alternate theory to overcome originalism

is unconvincing if originalism is a theory that cannot be implemented. Volumes

have been written on originalism. The theory has evolved over the decades. It is now

a multifaceted entity that operates under its own momentum. As a result, academic

originalists have let their theory get away from them, and where it has gone raises

increasingly urgent questions of whether originalism is truly intended to interpret

law or to serve specific political interests. The normative arguments for and against

originalism, common threads between competing theories, and the permissible

extent of constitutional construction all neglect to consider how any of these theories

287

See Frederick Schauer, Unoriginal Textualism, 90 GEO.WASH.L.REV. (forthcoming

2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3911956; Michael L. Smith, The

Present Public Meaning Approach to Constitutional Interpretation, 89 T

ENN.L.REV.

(forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4106823; Tom W.

Bell, The Constitution as if Consent Mattered, 16 C

HAP.L.REV. 269 (2013). For an example

of a similar approach to statutory interpretation, see generally Hillel Y. Levin, Contemporary

Meaning and Expectations in Statutory Interpretation, 2012 U. I

LL.L.REV. 1103 (2012).

288

Solum references Article IV of the Constitution, which guarantees every state a

republican form of government and provides that the United States shall protect states against

invasion and, on application of the legislature or executive, against “domestic violence.” See

Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning,

91 N

OTRE DAME L. REV. 1, 16–18 (2015) (citing U.S. CONST. art. IV, § 4, cl. 4). Solum argues

that changes in language would suggest that the Constitution provides for protection against

familial or intimate partner violence—which Solum dismisses as a “linguistic mistake” in light

of the original public meaning. Id. at 16–18. This is not much of a problem for the present

public meaning theory, though, as the context of “domestic violence” in the Constitution

indicates that it is referring to civil conflict arising within a state—particularly as the state

is the object of protection, a point that Michael Dorf notes in The Undead Constitution, 125

ARV.L.REV. 2011, 2044 (2011) (book review). Solum addresses Dorf’s comment and does

not dispute it—instead arguing that it does not fit the theory that meaning is fixed at the time

of utterance. But Solum does not address the larger point that concerns of linguistic drift are

overblown as they may be mitigated by reading constitutional terms in context.

2022] ORIGINALISM’S IMPLEMENTATION PROBLEM 1117

are to ultimately be implemented by attorneys and courts. By failing to establish an

implementable theory, originalists are not in a position to demand that critics propose

an alternative theory of their own.

While originalism has given rise to a great deal of theorizing, its proponents

have failed to demonstrate that originalism can be feasibly implemented by judges,

attorneys, and the general public. As a result, originalism is fatally disconnected from

the practice and rule of law. Its proponents must either solve this problem or ac-

knowledge this disconnect and begin to grapple in earnest with the political signifi-

cance of a theory that is being used to advance specific political interests. Until then,

originalist literature will remain of little practical significance—continuing to serve

as a political stalking horse, strategically deployed in political discourse to justify

the pursuit of political agendas and, in practice, resulting in little more than selective

citation and application by courts and attorneys hoping to reach a particular result.