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    A Jurist's Language of Interpretation

    Familiarity with the language of interpretation extends beyond the academic. Advocates familiar with different interpretation approaches – and which jurists favor them – can gain a distinct advantage.

    Joseph S. Diedrich

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    “We’re all textualists now.” “We are all originalists.” Or so says Justice Elena Kagan.1

    Well known in both the popular and legal lexica, the terms “textualism” and “originalism” denote two approaches to interpreting constitutions and statutes. This article explores what these approaches (and others) entail and how Wisconsin state and federal judges deploy them.2

    In every case involving a constitutional or statutory provision, a court embarks on a decision-making process comprising at least two steps: interpretation and application.3 First, a judge interprets what the law means. Then, a judge or jury applies the interpreted law to the facts. This article addresses the first step, during which judges rely on one or more “interpretation approaches,” including textualism, originalism, and their counterparts.

    The term “construction” is also used to describe a part of this decision-making process, either as a synonym for interpretation or to mark a distinct step in the process. To avoid confusion, this article foregoes using “construction” interchangeably with “interpretation.” Later on, this article examines construction’s potential role as a distinct decision-making step.

    Textualism and Its Alternatives

    Animated by the principle that “[i]t is the enacted law, not the unenacted intent, that is binding on the public,”4 textualism trumpets the fair, ordinary meaning of words in context. To that end, textualist judges interpret a legal text by consulting first and principally the plain meaning of the text’s words (aided by canons of construction, as necessary). At the same time, they disregard or significantly deemphasize legislative history, drafter intent, expected application, consequences, policy, and similar considerations.5

    Joseph S. DiedrichJoseph S. Diedrich, U.W. 2017 summa cum laude, Order of the Coif, is an appellate litigator at Husch Blackwell LLP in Madison. He also serves on the State Bar of Wisconsin’s Appellate Practice Section board.

    Oncale v. Sundowner Offshore showcases textualism in practice. Title VII of the Civil Rights Act of 1964 bans employment discrimination “because of … sex.” In Oncale, the U.S. Supreme Court unanimously held that an employee who suffers same-sex sexual harassment can state a claim under Title VII. Although no legislator in 1964 likely intended or expected Title VII to cover same-sex sexual harassment, the Court reasoned that “nothing in Title VII necessarily bars a claim of discrimination ‘because of … sex’ merely because the plaintiff and the defendant … are of the same sex.” “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” added the Court, speaking through self-proclaimed textualist Justice Antonin Scalia. “[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”6

    The current U.S. Supreme Court “is rightly considered the most consistently textualist Court in modern history, despite the fact that it sometimes reaches seemingly atextual results.”7 One could fairly make a similar claim regarding the current Wisconsin Supreme Court. In 2004, the court observed in Kalal v. Circuit Court for Dane County that “Wisconsin’s statutory interpretation case law” had “evolved in something of a combination fashion, generating some analytical confusion.” Many cases had announced a primary goal of “discern[ing] and giv[ing] effect to the intent of the legislature,” while also following an essentially textualist approach.8

    To resolve any dissonance, in Kalal the court unambiguously adopted a textualist approach to interpreting statutes. “[S]tatutory interpretation,” the Kalal court declared, “begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.” Statutory language must be interpreted according to its “common, ordinary, and accepted meaning,” “in the context in which it is used,” and “reasonably, to avoid absurd or unreasonable results.”9

    Although the Wisconsin Supreme Court adheres to textualism when interpreting statutes, it generally does not when interpreting the state constitution. For the latter, the court “undertake[s] a more intense review of extrinsic evidence” to “promot[e] the objects for which [constitutional provisions] were framed and adopted.” The court thus always examines not only the text but also “the constitutional debates and practices of the time, and the earliest interpretations of the provision by the legislature, as manifested through the first legislative action following adoption.”10 The court’s duality in this respect has not passed without objection.11

    The current U.S. Supreme Court “is rightly considered the most consistently textualist Court in modern history, despite the fact that it sometimes reaches seemingly atextual results.”

    Alternatives to textualism, of which there are many, all have at least one thing in common: They place lesser weight on the bare meaning of words and elevate to prominence other evidence of meaning. Many judges, for instance, place great weight on drafter intent or the overarching purpose of a statutory or constitutional scheme. Among the most prominent purposivists is Justice Stephen Breyer, who contends that looking to purpose helps “implement the public’s will.”12 Other nontextualist judges might also focus on the consequences of interpreting a text one way or another (consequentialism) or on how the drafters would have expected the text to apply to particular factual situations (expected application).

    Nontextualist judges examine a variety of different sources depending on their personal preferences and the circumstances of a particular case. Such sources might include drafts of accepted and rejected bills and amendments, legislative findings and reports, records of committee proceedings, speeches and floor debates, prior and subsequent legislative enactments and refusals to enact, related executive branch material, and prior and subsequent case law, among other things.

    Finally, because “[a]dhering to the fair meaning of the text” is the “textualist’s touchstone,” an approach of “strict constructionism” also – perhaps surprisingly – deviates from textualism.13 Prominent jurists from Learned Hand to Felix Frankfurter to Antonin Scalia have shared this view, steadfastly rejecting “a sterile literalism that loses sight of the forest for the trees.”14

    Textualism Versus Originalism

    Many lawyers and laypeople perceive textualism and originalism as two sides of the same coin. Judges, they believe, are either both textualists and originalists – or are neither of those things. But in reality, textualism and originalism lie on different axes: Although non-originalism is the opposite of originalism, it is not necessarily the opposite of textualism.51

    As explained, a textualist judge generally disregards non-textual sources. A non-textualist judge, by contrast, might emphasize non-textual sources, such as evidence of drafter intent. Similarly, evidence of drafter intent enjoys pride of place for an original-intent originalist judge. Original-intent originalism, then, does not align with textualism and often leads to profoundly atextual results.

    Also as explained, the Wisconsin Supreme Court follows a textualist approach to interpreting statutes. At the same time, when it interprets the Wisconsin Constitution, the court follows an original-intent originalist approach that cannot fairly be described as textualist.52

    Textualism and original-meaning originalism occupy much more common ground. In his Senate confirmation hearing, U.S. Supreme Court Justice Brett Kavanaugh put it this way: “Originalism, as I see it, means, in essence constitutional textualism, meaning the original public meaning of the constitutional text.”53 Whether interpreting a constitution or a statute, an original-meaning originalist judge – like a textualist judge – places great emphasis on text while often forgoing reliance on other evidence.

    Originalism and Original Intent

    References to “original meaning” and “original intentions” dot U.S. Supreme Court opinions as far back as the 1960s,15 but it was during the next two decades that originalism materialized as a comprehensive approach to constitutional interpretation. Arguably sparked by a 1971 Robert Bork article, “originalism arose from efforts by conservative legal scholars and politicians to combat what they saw as overreaching by liberal judicial decisions in the Warren and Burger Courts.”16

    Early originalists “purported to interpret the text of the Constitution according to the intentions of its Framers.”17 For instance, to decide whether the Eighth Amendment’s cruel-and-unusual punishment clause bans the death penalty, an original-intent originalist judge might ask, “Did the framers intend to prohibit the death penalty?” or “Did the framers expect that the Eighth Amendment would ban the death penalty?”

    From the beginning, original-intent originalism has been sharply criticized on multiple grounds. Originalism suffers from a practical problem, an argument goes, because one cannot ascertain the “intent” of multiple diverse persons who adopted text as a collective. Moreover, even if one could estimate intent, it is difficult to translate that intent to changed factual circumstances over time. Finally, if we indeed live under a government of laws and not of men, then “[w]hat justification is there … to be ruled by the dead hand of the past?”18

    In response to these and other criticisms, originalist scholars set out to refine originalism. For a period in the 1990s, a new approach of “original understanding” emerged, which refocused the originalist inquiry on the understanding of ratifiers, as opposed to the intentions of drafters.19 Many contemporary originalists have again shifted originalism’s focus –this time toward original meaning (more on that below).

    That said, many contemporary judges, lawyers, and laypeople still conceive of originalism as bound up with original intent or understanding. In its 2018-19 term, for instance, the U.S. Supreme Court held that public employees have a First Amendment right to refuse to pay union dues. In support of that conclusion, the Court spoke of original understanding: “The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections.”20

    The Wisconsin Supreme Court has adopted a form of original-intent originalism to interpret the Wisconsin Constitution. At the same time, some current justices have argued for an original-meaning originalist approach, the subject of the next section.21

    Original Meaning

    The “New Originalism,” as Keith Whittington has dubbed it, eschews original intent and instead highlights a text’s original public meaning.22 Specifically, original-meaning originalism asks what a “reasonable speaker of English would have understood the words of the text to mean at the time of its enactment,”23 “taking into account any generally recognized terms of art, and any background context necessary to understand the text.”24

    Revisiting the example from the previous section, to decide whether the Eighth Amendment’s cruel-and-unusual punishment clause bans the death penalty, an original-meaning originalist judge might ask, “What would a reasonable speaker of English have understood the words ‘cruel’ and ‘unusual’ to mean at the time of enactment?” Even using the 18th-century meaning of those words, changes in moral philosophy and other circumstances might mean that in today’s time, the Eighth Amendment applies to prohibit the death penalty. As this example suggests, by focusing on semantic meaning rather than intent or expected application, “the New Originalism is …. far more modest than the old originalism about the amount of information actually conveyed by the words on the page.”25

    Although words often bear the same meaning they did decades or centuries ago, sometimes they do not. For example, article IV of the U.S. Constitution empowers the federal government to “protect” every state “against domestic Violence.” Domestic violence originally meant riots – not, as it does now, household-member abuse.

    To ascertain original meaning, judges consult contemporaneous dictionaries, newspapers, and other public documents capable of shedding light on what given words meant at a given point in time. Evidence of original intent, such as drafter notes or the Federalist Papers, may also “aid in ascertaining original meaning” but only to the extent they help reveal meaning or help resolve ambiguities in meaning.26

    To ascertain original meaning, judges consult contemporaneous dictionaries, newspapers, and other public documents capable of shedding light on what given words meant at a given point in time.

    Some originalists have also embraced corpus linguistics to “provide[] a rigorous data-driven approach” to ascertaining original meaning. “A corpus, in linguistic terms, is merely a searchable body” of “tens or hundreds of millions” of words appearing in contemporaneous source material, which “can help with the small sample sizes that have usually plagued originalist research.”27

    At the U.S. Supreme Court, Chief Justice Roberts and Justice Thomas, Justice Alito, and Justice Gorsuch have all joined at least one opinion that uses or advocates for an original-meaning originalist interpretation approach; Justice Kavanaugh signaled in his confirmation hearings that he would join, too.28 Judge Bauer, Judge Manion, Judge Kanne, Judge Rovner, and Judge Sykes of the Seventh Circuit have all written or signed onto opinions relying on original-meaning originalism.29 And in Wisconsin, Chief Justice Roggensack and Justice Ziegler, Justice R.G. Bradley, Justice Kelly, and Justice Hagedorn have all positively referred to the approach in opinions.30

    In the 2018-19 term, the Wisconsin Supreme Court heard a challenge to a statute prohibiting joint ownership of funeral homes and cemeteries.31 The plaintiffs, who were restricted from jointly owning both businesses, argued that the statute infringed on their rights under article I, section 1 of the Wisconsin Constitution, which protects “inherent rights” to “liberty.”32 The majority reasoned that liberty does not include economic liberty and upheld the statute. Justice R.G. Bradley and Justice Kelly dissented; using an original-meaning originalist approach, they reasoned that in 1848, “liberty” meant both economic and civil liberty.33

    Judges also use original-meaning originalism to interpret statutes. This approach, sometimes called “ordinary contemporary common meaning,” instructs a judge to interpret texts “consistent with their ordinary meaning … at the time [the legislature] enacted” them.34

    As an example, the U.S. Supreme Court recently turned to original meaning when asked to interpret the phrase “money remuneration” in a 1937 federal statute benefitting railroad employees. Because “money” meant a “medium of exchange” in 1937, the Court reasoned, “‘money,’ as used in [the] statute, must always mean a ‘medium of exchange.’” But that did not mean railroad employees were “trapped in a monetary time warp, forever limited to those forms of money commonly used in the 1930s.” In sum, although “meaning is fixed at the time of enactment,” “new applications may arise in light of changes in the world.”35

    Living Constitutionalism

    Another major approach to constitutional interpretation is living constitutionalism. Although the term “living constitution” first appeared in a 1927 book of the same name, rudimentary versions of the approach trace their roots to Woodrow Wilson and Justice Oliver Wendell Holmes Jr., the latter of whom wrote that “when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”36

    The overarching aim of living constitutionalism is to protect and promote a constitution’s legitimacy in contemporary society. To that end, it views constitutional law “as the product of a continuing process of valuation carried on by those to whom the task of constitutional interpretation has been entrusted.”37

    To interpret constitutional text, living constitutionalist judges embark on a wide-ranging inquiry, gradually coalescing around a plausible, just, and legitimacy-reinforcing reading. They rely (to a greater or lesser extent) on
    “[d]iscussions of consequences, underlying principles of political morality, prudence, doctrine,” and other pragmatic considerations. Although they might also consult text, history, and structure, such judges do not privilege those sources over others, instead treating them as “parts of the motley constellation that is constitutional interpretation.”38

    Living constitutionalism was the dominant approach to constitutional interpretation throughout the 20th century. Several former U.S. Supreme Court justices explicitly endorsed the approach.39 In 1975, the Wisconsin Supreme Court took it for granted that the constitution is “a living document.”40 Although that court also once considered statutes to be just as “elastic” as a living constitution, the U.S. Supreme Court “never approved a living United States Code.”41

    As a comprehensive, stand-alone interpretation approach, living constitutionalism has lost judicial ground in the wake of originalism’s assent. Still, though, varying pragmatic approaches, as well as other protean approaches not tethered to any particular comprehensive program, continue to prevail.

    Living Originalism and the Interpretation-Construction Dichotomy

    Many view originalism and living constitutionalism as polar opposites – but the two approaches can actually be harmonized. In some cases, the original meaning of a text by itself is sufficient to determine an outcome. In other cases, original meaning alone “is not sufficiently determinate to dictate a unique application,” especially “when the text employs abstract principles or vague standards.”42

    In those latter cases, there is room for an intermediate decision-making step between interpretation and application. This step, often referred to as “construction,” grafts additional determinacy onto bare semantic meaning by “building doctrines and institutions that give effect to the [text’s] provisions.”43

    Construction in this context enables judges to begin with original meaning and then, if necessary, use non-originalist arguments and evidence to supply the requisite determinacy to proceed to application. During construction, a judge might rely, for instance, on evidence of historical discourse, principles implied from a text’s structure (such as the separation of powers), judicial and nonjudicial precedents, and considerations of consequences. Although not necessarily originalist itself, the product of construction must not contravene original meaning.

    Scholars of varying ideological proclivities – from Jack Balkin to Randy Barnett – have advocated some form of the interpretation-construction-application framework, which Balkin calls “living originalism.”44 Others have rejected the framework. Justice Scalia, for example, wrote that “interpretation” and “construction” are synonymous, and that attempts to distinguish between them lead to interpretive mischief and belie how judges reason.45 Living constitutionalists have also rejected the “living originalism” approach because it accepts originalism.46

    Justice Kagan’s Comments Revisited

    So, are judges indeed “all originalists” and “all textualists now,” as Justice Kagan contends? The visibility of these terms has certainly increased in recent decades. But is that increase accompanied by a corresponding increase in adherence to the approaches?

    On the one hand, many judges do not fall neatly into any of the approaches described above. They may adhere to their own unique approaches that defy tidy classification. Just as likely, they may deploy different approaches in different cases, with or without reason, and with or without intending to do so. On that point, a cynic might argue that no judge adheres to any approach in a principled way, relying instead on whatever approach justifies a desired outcome.

    On the other hand, many judges unquestionably favor certain interpretation approaches over others. Although no judge “applies any method of interpretation perfectly, consistently, and with strict precision,”47 appellate judges in particular have often spilled enough ink, in or out of court, to reveal which interpretation approaches they consider persuasive. Here, a cynic might argue that even if judges are all textualists or originalists now, for political reasons only some judges will admit as much.

    Depending on the makeup of an appellate court or panel, a court may favor particular interpretation approaches in particular contexts. As mentioned, certainly the U.S. and Wisconsin Supreme Courts have trended toward textualism. And both courts have also adopted certain forms of originalist reasoning, at least in some cases.

    Even if textualism and originalism are the only two choices, however, that does not necessarily predict outcomes either in specific cases or in the aggregate. Consider originalism, which many lawyers and laypeople associate with politically conservative principles and outcomes. Original-meaning originalism in particular, however, is outcome neutral and actually supports certain outcomes at odds with political conservatism.

    The original meaning of the Seventh Amendment, for instance, likely requires a very relaxed federal pleading standard, from which Twombly-Iqbal’s plausibility standard deviates. The original meaning of the Eighth Amendment possibly renders aspects of mass incarceration and lengthy prison sentences unconstitutional.48 And the original meaning of the 14th Amendment might support a right to reproductive freedom.49 “[T]he concepts of fidelity to original meaning” by and large “do not correspond to either liberal or conservative ideologies.”50

    Conclusion

    Regardless of whether we are all textualists or all originalists, no doubt some judges and some courts follow certain interpretation approaches, at least under certain circumstances. Understanding this reality – and the role interpretation approaches play in judicial decision-making – allows one to more deeply appreciate how and why jurists reach the conclusions they do.

    This understanding extends beyond the academic. Advocates familiar with different interpretation approaches – and which jurists favor them – can gain a distinct advantage. Using the analytical framework of particular interpretation approaches, informed advocates can tailor arguments to respective judges’ and courts’ preferences. Ultimately, a familiarity with the language of interpretation and an understanding of the various interpretation approaches makes for a more effective and nimble advocate.

    Judges, then, are not the only actors in the legal system who interpret constitutions and statutes. Lawyers can and do, too. Whatever the approach, we do all share at least one thing: we are all interpreters.

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    Joseph S. DiedrichI devote my entire practice to litigation. I’m an extremely competitive person, and litigation is competition. Of course, competition begets both success and failure. And from that comes confidence and humility, respectively. Figuring out how to balance success and confidence with failure and humility – and to learn from it all – presents a constant challenge.

    Joseph S. Diedrich, Husch Blackwell LLP, Madison.

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    Endnotes

    1 Elena Kagan, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes, Harv. L. Today (Nov. 17, 2015) [http://perma.cc/3BCF-FEFR] (textualists); Elena Kagan Senate Confirmation Hearing, at 62, (originalists).

    2 This article does not address the interpretation of contracts or other legal texts.

    3 As Justice John Marshall observed in Marbury v. Madison, “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” 5 U.S. (1 Cranch) 137, 177 (1803).

    4 State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110; see also John Adams, 4 Life and Works of Johns Adams 99, 106 (1851) (Novanglus Letter No. VII) (referring to “a government of laws, and not of men”).

    5 In the statutory context, it remains consistent with textualism to look beyond the text – to intent, purpose, effect, consequences, and so on – when the constitutionality of the statute is assailed. As explained, textualism promotes a government of laws, not of men; a constitutional challenge questions whether the statute is actually “law” in the first instance. See Little Rock & Ft. S. Ry. v. Worthen, 120 U.S. 97, 101-02 (1887) (“An unconstitutional act is not a law; it binds no one, and protects no one.”); Marbury, 5 U.S. at 180 (“[A] law repugnant to the Constitution is void . …”).

    6 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998).

    7 Anton Metlitsky, The Roberts Court and the New Textualism, 38 Cardozo L. Rev. 671, 684 (2016).

    8 Kalal, 2004 WI 58, ¶ 43, 271 Wis. 2d 633.

    9 Id. ¶¶ 43-46; see also Wisconsin Carry Inc. v. City of Madison, 2017 WI 19, ¶ 85, 373 Wis. 2d 543, 892 N.W.2d 233 (Bradley, A.W., J., dissenting). Wisconsin, it should be noted, has statutes that prescribe certain “rules for construction of laws,” such as that “the singular includes the plural,” and vice versa. Wis. Stat. § 990.001(1).

    10 Appling v. Walker, 2014 WI 96, ¶¶ 19-21, 358 Wis. 2d 132, 853 N.W.2d 888 (citing Dairyland Greyhound Park Inc. v. Doyle, 2006 WI 107, ¶ 19, 295 Wis. 2d 1, 719 N.W.2d 408; id. ¶¶ 115-116 (Prosser, J., concurring in part & dissenting in part)).

    11 See, e.g., Black v. City of Milwaukee, 2016 WI 47, ¶ 59, 369 Wis. 2d 272, 882 N.W.2d 333 (Bradley, R.G., J., concurring) (quoting Antonin Scalia, A Matter of Interpretation 38 (Amy Gutmann ed., 1997)). See generally Daniel R. Suhr, Interpreting the Wisconsin Constitution, 97 Marq. L. Rev. 93 (2013).

    12 See Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 7-8, 88 (2005); Jennifer M. Bandy, Interpretive Freedom: A Necessary Component of Article III Judging, 61 Duke L.J. 651, 654-55 (2011). According to Justice Breyer, “[a]t the heart of a purpose-based approach stands the ‘reasonable member of Congress’ – a legal fiction that applies, for example, even when Congress did not in fact consider a particular problem. The judge will ask how this person (real or fictional), aware of the statute’s language, structure, and general objectives (actually or hypothetically), would have wanted a court to interpret the statute in light of present circumstances in the particular case.” Breyer, supra, at 88. For an example of Justice Breyer’s purposivism in practice, see Dole Food Co. v. Patrickson, 538 U.S. 468, 486-87 (2003) (Breyer, J., dissenting in part).

    13 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 356 (2012).

    14 New York Tr. Co. v. Commissioner, 68 F.2d 19, 20 (2d Cir. 1933) (per Hand, J.); see also Utah Junk Co. v. Porter, 328 U.S. 39, 44 (1946) (per Frankfurter, J.).

    15 Solem v. Helm, 463 U.S. 277, 310 (1983) (Berger, J., dissenting) (first use of “original intentions”); Ingraham v. Wright, 430 U.S. 651, 670 n.39 (1977) (first majority opinion use of “original meaning”); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 671 (1966) (Black, J., dissenting) (“original meaning”); see also Van Orden v. Perry, 545 U.S. 677, 729 (2005) (Stevens, J., dissenting) (first use of “originalism” in U.S. Supreme Court opinion); Roper v. Simmons, 543 U.S. 551, 626 (1977) (Scalia, J., dissenting) (first use of “originalist” in U.S. Supreme Court opinion).

    16 Jack M. Balkin, Living Originalism 101 (2011); Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory 6, (2011); Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971). The first use of the term “originalism” was by Paul Brest in 1981. Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 Yale L.J. 1063, 1090 (1981).

    17 Randy E. Barnett, The Gravitational Force of Originalism, 82 Fordham L. Rev. 411, 412 (2013) (emphasis added); see also Raoul Berger, Government by Judiciary (1977); Robert C. Post & Reva B. Siegel, The Right’s Living Constitution, 75 Fordham L. Rev. 545 (2006); Keith Whittington, The New Originalism, 2 Geo. J. L. & Pub. Pol’y 599 (2004); Edwin Meese III, “Address before the American Bar Association,” in The Great Debate: Interpreting Our Written Constitution 9 (Paul G. Cassell ed., The Federalist Society 1986); William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).

    18 Barnett, Gravitational Force, supra note 17, at 412-13; see also Randy E. Barnett, The Relevance of Framers Intent, 19 Harv. J. L. & Pub. Pol’y 403, 403–07 (1996); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. Rev. 204, 214-22, 230-31 (1980); Adams, supra note 4, at 106 (referring to “a government of laws, and not of men”). Original-intent originalism, another argument proceeds, runs counter to the Framers’ preferred method of interpretation. See H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).

    19 See Solum, What Is Originalism?, supra note 16, at 9-11; see also, e.g., Richard H. Fallon Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1275, 1317 (1996) (defining “originalism” as “the theory that the original understanding of those who wrote and ratified various constitutional provisions determines their current meaning”).

    20 Janus v. American Fed’n of State, Cty. & Mun. Employees, Council 31, 138 S. Ct. 2448, 2470 (2018).

    21 See supra notes 10-11 and accompanying text.

    22 See Whittington, supra note 17.

    23 Barnett, Gravitational Force, supra note 17, at 413-15. Of course, legal terms of art would carry their legal meaning, not their lay meaning.

    24 Jack M. Balkin, The Construction of Original Public Meaning, 31 Const. Comment. 71, 80 (2016).

    25 Barnett, Gravitational Force, supra note 17, at 419; see, e.g., Lawrence B. Solum, Semantic Originalism (Univ. of Ill. Coll. of Law Ill. Pub. Law & Legal Theory Research Papers Series, Paper No. 07-24, 2008). As stated in the beginning, “fidelity to original meaning does not require following what the framing generation thought the consequences of adopting the words would be.” Balkin, Living Originalism, supra note 16, at 104. Even self-proclaimed original-meaning originalists, however, often conflate original meaning with original expected application. See id. at 100, 104; see also, e.g., Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, (2020) (majority op. of Gorsuch, J.) (explaining difference between meaning and expected application, and criticizing arguments made based on expected application).

    26 Black, 2016 WI 47, ¶ 59 (Bradley, R.G., J., concurring) (quoting Antonin Scalia, A Matter of Interpretation 38 (Amy Gutmann ed., 1997)); Balkin, Living Originalism, supra note 16, at 228-29 (citing John O. McGinnis & Michael Rappaport, Original Interpretive Principles as the Core of Originalism, 24 Const. Comment. 371, 378 (2007)).

    27 Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788 (2018); Lawrence B. Solum, Surprising Originalism, 9 ConLawNOW 235, 258 (2018); James C. Phillips et al., Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical, Yale L.J. Forum at 24 (2016).

    28 See, e.g., Financial Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1666 (2020) (Thomas, J., concurring in the judgment); Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074-75 (2018) (per Gorsuch, J., joined by Roberts, C.J., Kennedy, Thomas, Alito, JJ.); Lucia v. Securities & Exch. Comm’n, 138 S. Ct. 2044, 2056 (2018) (Thomas, J., concurring, joined by Gorsuch, J.); Oil States Energy Servs. LLC v. Greene’s Energy Grp. LLC, 138 S. Ct. 1365, 1381 (2018) (Gorsuch, J., dissenting, joined by Roberts, C.J.); Brett Kavanaugh Confirmation Hearings, Day 2, Part 2, 1:56; see also Ramos v. Louisiana, 140 S. Ct. 1390, 1416 (2020) (Kavanaugh, J., concurring in part).

    29 See, e.g., Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 362-63 (7th Cir. 2017) (Sykes, J., dissenting, joined by Bauer, Kanne, JJ.); Friedman v. City of Highland Park, 784 F.3d 406, 412-17 (7th Cir. 2015) (Manion, J., dissenting); Ezell v. City of Chi., 651 F.3d 684 (7th Cir. 2011) (per Sykes, J., joined by Kanne, Rovner, JJ.); United States v. Skoien, 614 F.3d 638, 647 (7th Cir. 2010) (Sykes, J., dissenting).

    30 See, e.g., Matter of Commitment of C.S., 2020 WI 33, ¶¶ 47, 51–52, 391 Wis. 2d 35, 940 N.W.2d 875 (Bradley, R.G., J., dissenting); id. ¶¶ 72, 76 (Hagedorn, J., dissenting); State v. Schultz, 2020 WI 24, ¶¶ 19-20, 939 N.W.2d 519 (per Bradley, R.G., J., joined by Roggensack, C.J., Ziegler, Kelly, JJ.); Porter v. State, 2018 WI 79, ¶ 61, 382 Wis. 2d 697, 913 N.W.2d 842 (Bradley, R.G., J., dissenting, joined by Kelly, J.); State v. Zamzow, 2017 WI 29, ¶ 16 n.8, 374 Wis. 2d 220, 892 N.W.2d 637 (per Bradley, R.G., J., joined by Roggensack, C.J., Ziegler, Gableman, Kelly, JJ.).

    31 See Porter v. State, 2018 WI 79, 382 Wis. 2d 697, 913 N.W.2d 842.

    32 Wis. Const. art. I, § 1.

    33 Porter, 2018 WI 79, ¶ 61 (Bradley, R.G., J., dissenting, joined by Kelly, J.); cf. Randy E. Barnett, Does the Constitution Protect Economic Liberty?, 35 Harv. J.L. & Pub. Pol’y 5-12 (2012).

    34 Wisconsin Cent., 138 S. Ct. at 2070 (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)); see, e.g., id. at 2070-72; Artis v. District of Columbia, 138 S. Ct. 594, 601-03, 614 n.8 (2018); Octane Fitness LLC v. ICON Health & Fitness Inc., 572 U.S. 545, 553-54 (2014); Amoco Prods. Co. v. Southern Ute Indian Tribe, 526 U.S. 865, 873-75 (1999); Diamond v. Chakrabarty, 447 U.S. 303, 308-10, 315-16 (1980).

    35 Wisconsin Cent., 138 S. Ct. at 2074-75.

    36 Missouri v. Holland, 252 U.S. 416 (1920) (per Holmes, J.). Wilson said: “Living political constitutions must be Darwinian in structure and in practice.” Woodrow Wilson, Constitutional Government in the United States 57 (1908). The 1927 book is Howard Lee McBain, The Living Constitution: A Consideration of the Realities and Legends of Our Fundamental Law (1927). On living constitutionalism, see generally Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of the “Living Constitution” in the Course of American State-Building, 11 Stud. Am. Pol. Dev. 191 (1997); Rehnquist, supra note 17, at 693; Charles A. Reich, Mr. Justice Black and the Living Constitution, 76 Harv. L. Rev. 673 (1963).

    37 Terrance Sandalow, Constitutional Interpretation, 79 Mich. L. Rev. 1033, 1034 (1981); see Ethan J. Leib, The Perpetual Anxiety of Living Constitutionalism, 24 Const. Comment. 353, 359-60 (2007).

    38 Leib, supra note 37, at 358, 361.

    39 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 291 (1988) (Brennan, J., dissenting, joined by Marshall, Blackmun, JJ.); Rummel v. Estelle, 445 U.S. 263, 307 (1980) (Powell, J., dissenting, joined by Brennan, Marshall, Stevens, JJ.) (“We are construing a living Constitution.”).

    40 Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis. 2d 464, 490, 235 N.W.2d 648 (1975).

    41 Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 22 (2011) (Scalia, J., dissenting); State ex rel. Chobot v. Circuit Court for Milwaukee Cty., 61 Wis. 2d 354, 367, 212 N.W.2d 690 (1973).

    42 Balkin, Living Originalism, supra note 16, at 104; Barnett, Gravitational Force, supra note 17, at 419; see also Balkin, Construction, supra note 24, at 80-81.

    43 Balkin, Construction, supra note 24, at 80-81.

    44 See Balkin, Living Originalism, supra note 16; see also Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 6-7 (1999); Barnett, Gravitational Force, supra note 17, at 419; Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 457-58 (2013).

    45 Scalia & Garner, supra note 13, at 13-15. 

    46 See generally, e.g., Leib, supra note 37.

    47 Metlitsky, supra note 7, at 684.

    48 Solum, Surprising Originalism, supra note 16, at 251-59.

    49 See generally Jack M. Balkin, Abortion and Original Meaning, Faculty Scholarship Series 228 (2007).

    50 Balkin, Living Originalism, supra note 16, at 280.

    51 In addition, textualism is most often associated with statutory interpretation, and originalism with constitutional interpretation.

    52 See supra notes 10-11, 21 and accompanying text.

    53 Brett Kavanaugh Confirmation Hearings, Day 2, Part 2, 1:56.




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