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Richard H. Fallon, The Chimerical Concept of Original Public Meaning, 107 Va. L. Rev. 1421 (2021).

Abstract: This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (“PMO”) ascends toward a position of dominance within the Supreme Court, both practitioners and critics should recognize the limited capacity of historical and linguistic facts to settle modern issues. To understand successful constitutional communication, this Article argues, requires a distinction between “minimal” original public meanings, which either are entailed by language and logic or are otherwise noncontroversial, and the richer and more determinate meanings that originalists often purport to discover. When the Constitution says that each state shall have “two Senators,” “two” means two. By contrast, when members of the Founding generation disagreed about the meaning of a constitutional provision—as they frequently did—the idea of a uniquely correct and determinate more-than-minimal meaning that existed as a matter of linguistic and historical fact is chimerical. Judges can of course reach determinate conclusions, but seldom can those dispute-resolving conclusions be ones of simple historical fact. Insofar as practitioners of PMO—including Justices of the Supreme Court—purport to discover more-than-minimal original public meanings that provide determinate resolutions to contested cases, skepticism is in order. The problem with claims about more-than-minimal original public meanings is conceptual, not epistemological. Although public meaning originalists speak of “evidence” establishing the historical validity of disputed claims about original public meanings, they have no adequate account of what, exactly, the evidence is supposed to be evidence of. Beyond historical facts about who said and believed different things at particular times, there is no further, diversity-transcending fact of an original public meaning that extends beyond minimal and noncontroversial meanings. After identifying the conceptual limitations of public meaning originalism, this Article examines the resulting challenges for both theorists of PMO and for originalist and nonoriginalist Justices alike. It also draws lessons concerning the nature of and necessary conditions for successful constitutional communication across generations.