Professor Larry Solum has written an excellent series of posts that that help clarify the question of whether public meaning originalism constrains judges. He both distinguishes the concept of constraint from other related concepts like determinacy and helpfully suggests a framework for empirically analyzing the degree of constraint that originalism provides.
Larry, however, makes one puzzling assertion in the first of these posts. He suggests that there are alternatives to public meaning originalism still supported by serious originalist scholars. He included as one of these alternatives “original methods originalism” – the view of originalism that Mike Rappaport and I have propounded. But original methods originalism is emphatically a form of public meaning originalism.
In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.
Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law. The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate. But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law.