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.
On this site Frank Buckley yesterday made a series of puzzling assertions about originalism. First, he says that “original meaning originalism” (which I believe most people call “public meaning originalism”) “dispenses with an examination” of what the Framers intended. At another point he states that public meaning originalism “collapses” into original intent originalism. These statements are in some tension with one another, but neither is accurate.
Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.
On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.