Rain pelted my San Francisco window as I scrolled Edward Foley’s latest from SCOTUSblog, his pitch for ditching originalism hitting like a cold splash on overheated legal debates.
Here’s the thing. Foley’s not some wide-eyed academic throwing spaghetti at the wall. He’s got credentials in election law, and he’s calling out the Supreme Court’s darling—original public meaning—as yesterday’s news.
What Even Is Original Public Meaning, Anyway?
Amy Coney Barrett nails it in her Rahimi concurrence, and Foley quotes her straight: > “the meaning of constitutional text is fixed at the time of its ratification” because “[r]atification is a democratic act that renders constitutional text part of our fundamental law.”
Fixed. Locked. No updates. That’s the pitch: Constitution’s words mean what the average Joe in 1789 (or 1868 for amendments) thought they did. Dictionaries from back then, pamphlets, newspapers—all trotted out to prove “bear arms” doesn’t cover AR-15s or whatever the culture war du jour is.
Foley says, nah. Why not contemporary public meaning? Same method—hunt public sources for what words convey—but poll today’s crowd, not the powdered-wig set. Modern dictionaries. Tweets? (Okay, maybe not tweets, but you get it.) Objective as possible, no framers’ tea leaves required.
But.
This isn’t about linguistics. It’s law’s soul.
Originalism clings to John Austin’s 19th-century “command theory”—law’s a bossy edict from sovereigns, etched in stone forever. Ratify it, and poof, meaning’s frozen lest judges play God.
Foley’s counter? Law evolves. Like common law did for centuries, judges (and us) refine it through cases, democratic feedback. Contemporary meaning keeps the Constitution breathing, serving today’s democracy—not fossilizing it.
Why Originalism Feels Like Legacy Code in 2024
Look, I’ve covered Silicon Valley long enough to spot buggy software masquerading as innovation. Originalism? It’s Windows 95 running on quantum hardware. Crashes galore when “equal protection” hits modern realities like AI surveillance or digital speech.
Foley’s got a point: ratification makes it law, sure, but doesn’t dictate the dictionary edition. Why chain democracy to 18th-century linguistics? We’ve got 330 million people now, not 4 million colonists. Words shift—“person” once excluded plenty; today, it’s broader, thanks to amendments and culture.
And here’s my unique twist, one Foley skips: this mirrors open-source evolution. Originalism’s proprietary, locked repo from 1787. Contemporary meaning? Community fork, pull requests from We the People. Courts as maintainers, merging PRs via precedent. Predict this: in 10 years, as AI legal tools parse constitutions, contemporary meaning wins because machines excel at corpus analysis of current language data. Legacy originalism? Garbage in, biased garbage out.
Cynical me asks: who’s cashing checks here? Conservative foundations fund originalist scholars (Barrett’s book, anyone?), turning law into ideology mill. Foley’s alternative? Maybe academics pivot, but does it enrich Big Law or just tenure tracks?
Is Contemporary Public Meaning Living Constitutionalism 2.0?
Skeptics (hi) yell “relativism!” But Foley insists no—it’s public meaning, not judge’s whim. Objective sources: Google Ngrams, corpus linguistics (shoutout to BYU’s tools, actual legal tech). Not “what I feel,” but “what we say.”
Take “freedom of speech.” 1791? Political pamphlets. Today? Algorithms, deepfakes, memes. Originalists squint at quill pens; contemporaries scan TikTok trends. Which serves democracy better? The one where law adapts without amendment roulette.
Yet pitfalls lurk. Public meaning today? Polarized as hell. Whose “public”? Urban dictionary or Fox News? Foley waves at “average member,” but averaging Twitter’s a dumpster fire.
Still, beats originalism’s elitism—historians debating 200-year-old arcana while voters seethe.
Original public meaning pretends objectivity via time machine. But history’s contested too—slaveholder dictionaries? Conveniently narrow.
Contemporary? Messy, democratic messy. Fits a republic.
Who Wins If Courts Switch?
Tech angle, since that’s my beat: imagine AI regs under contemporary lens. “Privacy” in Fourth Amendment? Original: nosy redcoats. Now: data brokers. Courts could evolve without Congress’s gridlock.
Election law—Foley’s turf—screams for it. “One person, one vote” in gerrymander age? Contemporary meaning cuts BS.
But PR spin alert: Supreme Court’s originalist bloc won’t budge. Barrett’s crew sees alternatives as judicial activism. Foley’s essay? Thought-provoker for law profs, not tomorrow’s docket.
Money trail: originalism sells books, clerkships, clerkships to Federalist Society gigs. Contemporary? Might empower public-interest litigators, disrupt the grift.
So, yeah.
It could work.
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Frequently Asked Questions
What is contemporary public meaning?
It’s figuring out what average Americans today think constitutional words like “speech” or “arms” mean, using modern sources—same rigor as originalism, different era.
Does this replace originalism on the Supreme Court?
Unlikely soon—Barrett and crew are all-in on fixed meaning—but it challenges their monopoly, especially as cases hit digital-age clauses.
Why does public meaning beat framers’ intent?
Foley (and Barrett) say intent’s subjective; public understanding’s objective—whether 1789 or 2024 public.
