Public Meaning Originalism Is Not Indifferent to Evidence About the Intent of the Framers

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.

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Executive Power in the Age of Obama

lawlessThis edition of Liberty Law Talk features a discussion with George Mason Law School Professor David Bernstein on his recently released book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.

Dedicated to an Important Half-Truth


This past week, at the invitation of a dear friend (Christopher Wolfe  —no, wait: this guy),  I visited the University of Dallas. On some accounts it’s the ugliest campus in America. On all accounts it’s among the most amazing: where else would you find students who sit in rapt attention for a six-hour (!) debate on inequality (featuring William Galston, Ross Douthat, and yours truly)?

Pending the webilcation of the entire event, herewith my opening remarks. I’m way out of my league here but what the heck:


Inequality, we have it on presidential authority, is “the defining challenge of our time.” Arguably it’s the (or at least a) defining challenge of all times—a profound question that invites deep reflection. Jerusalem had one answer; Athens had another. Hobbes and Machiavelli had different answers yet. A bit closer to home, this country was famously founded on the “self-evident” truth that all men are created equal.

The raging contemporary debate, for good or ill, has nothing to do with any of that. It is limited to income inequality, and it says that r is greater than g: the returns to capital will exceed the economic growth rate and so the rich get richer and the poor get poorer over time. That’s not quite inevitable, or always true. The post-War era experienced a “great compression.” But income inequality has increased dramatically since the 1980s and especially after the 2008-2009 financial crisis: all the gains from growth have gone to the 10 percent or the one percent or whatever. Surely we should do something about that.

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Holland’s Reply to Shepard

The Watergate cover-up defendants were denied due process in at least one respect: they deserved a change of venue. In this respect I agree with Geoff Shepard, and wrote as much. With regard to ex parte meetings held by Judge Sirica, some documented and many others not, Shepard’s case would have been strengthened had he talked to lawyers who were in the Watergate Special Prosecution Force—many of whom are still around—and/or elicited the views of legal experts about special prosecutor Leon Jaworski’s secret meetings with Sirica. That Shepard did neither of these things suggests his case is not as cut-and-dried as he…

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Stop Your Sobbing

Screenshot (56)

To read the rage this fall—the angry comments, the push of reporters, the attempt to gin up controversy about Chrissie Hynde’s new rock ’n’ roll memoir Reckless: My Life as a Pretender—was to be tempted to despair. We are at such a crazed point in our culture, I wanted to scream, that to find sanity preached, we have to listen to a washed up 1980s punk rocker recalling her pre-stardom days of drugs and madness.

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Our Secretive Presidency

Mount Rushmore

Constitutions built upon a separation of powers were not made to last. The conceit that executive and legislative branches of government might be set in equipoise, and balance each other off over the decades, was amusingly mocked by Oliver Wendell Holmes, Sr. in The Deacon’s Masterpiece (1858):

Have you heard of the wonderful one-hoss shay,

That was built in such a logical way

It ran a hundred years to a day…?

The secret to building a carriage, the Deacon thought, was to make each piece as strong as the rest, so that no one part wears out first. And as there’d never be a weakest spot, the shay would go on forever, just like the imagined Madisonian Constitution. Well, it lasted and lasted, the talk of the town, until 100 years to the day it all collapsed at once and the new owner found himself sitting on a pile of ashes. No part wore out first. Everything went simultaneously. “End of the wonderful one-hoss shay. Logic is logic. That’s all I say.”

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Geoff Shepard Responds to “Maximum John Versus Tricky Dick”

Max Holland’s critique of my new book, The Real Watergate Scandal: Collusion, Conspiracy, and the Plot that Brought Nixon Down, is disappointing because I fear he missed its core message: That Watergate prosecutors and judges wanted so badly to rid the nation of Richard Nixon and his top aides that they totally trashed our Constitution and Bill of Rights. He seeks to dismiss the significance of over a dozen secret meetings, each of which is well documented, between judges and Watergate prosecutors or other interested parties. But they cannot be so dismissed. We aspire to be a nation of laws and…

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The Sharing Economy’s Political Power for Liberty

It is rare that an election in San Francisco brings good news to the nation, but last Tuesday voters there defeated a referendum that would have interfered with Airbnb by limiting the number of nights people could rent out rooms in their homes. While this victory is good on policy grounds, it is even better for what it tells us about the capacity of the sharing economy to mobilize small businesses and consumers against onerous regulations.

Small businesses and consumers tend to lose out in politics, because they are diffuse groups where the gain for each individual from engaging in politics to shape regulations is small and the cost of organizing is high. In contrast, large businesses and labor unions are more concentrated interests and as a result  have more leverage. In politics concentrated interests tend to win out over diffuse groups.

Such concentrated interests stood to gain substantially from restrictions on Airbnb. Hotels are competitors of Airbnb and so are the labor unions of hotel workers. Generally owners who want to rent out apartments for short stays and their customers would be no match for these interests. But Airbnb lowers the cost of organizing, because it is internet based. This organizational ability levels the playing field. The sharing economy is the porcupine of politics with ample quills in the form of participating consumers and small businesses for defense against government regulation.

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Living under Executive Federalism

National mall sunset, Washington DC

Last week, I visited Boston College for a discussion of the Supreme Court’s recent decisions. Herewith an abbreviated version of my remarks. Comments etc. most welcome because the thoughts (some old, some new) are embryonic: I’m working on a more serious, grown-up presentation.

We are living in an age of Executive Federalism. That form of government has some deeply disturbing features, including several that should prompt a judicial response. So far, the Court has given no indication that it has a clue.

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Reforming the Abuse of Agency Authority

Michael Greve recently wrote a great post about how administrative agencies abuse their authority and impose harm on private parties.  They are able to do this in a variety of different areas where their actions are not effectively subject to review by the courts.

Greve’s example is a letter sent by the Labor Department to businesswoman, Rhea Lana Riner, claiming that people she regarded as volunteers were actually employees and therefore had to be paid the minimum wage and overtime.  The Department sent Riner a demand letter, ordering her to pay the volunteer/employees or threatening “hundreds of thousands of dollars in civil penalties.”  According to Greve, the Department has “placed Riner in regulatory purgatory.” While the Department has threatened Riner, a federal court has ruled that there is no judicial review because the Department has not yet issued a formal complaint.  And Greve notes that the Department may never issue such a complaint, “because then, they’d have to defend their position in court.”

This appears to be another example of administrative agency action cynically taken in a way to avoid judicial review.  I have written about this in the past, including in the context of the Department of Education, which has largely transformed sexual assault rules on campuses through guidances that are used to threaten universities but are not subject to effective review in court.

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