FINGER LICKIN' GOOD TEXTUAL CONSTRUCTION:

Today's originalists often argue that any communication, oral or written, should be interpreted by its original public meaning, unless there is some indication that it should be interpreted in another way. The original public meaning is thus the true meaning of any public communication. To maintain the integrity of the Constitution over time, Yale law professor Jack Balkin writes, "we must preserve the meaning of the words that constitute the framework . . . . If we do not attempt to preserve legal meaning over time, then we will not be following the written Constitution as our plan but instead will be following a different plan." The content of all communication is fixed at the time of its utterance. Take the example of a letter written in the twelfth century that uses the word "deer." As Georgetown professor Lawrence Solum has pointed out, today, "deer" refers to a four-legged mammal of the cervidae family, but in Middle English, the word "deer" meant a beast or animal of any kind. Therefore, we would wrongly read "deer" in a letter written in the Middle Ages to mean what we think of as deer today.

Or take an example from the Constitution itself. Article IV, Section Four states that America shall protect every state in the union "against domestic Violence." The modern-day semantic meaning of the phrase "domestic violence," Solum notes, is "intimate partner abuse," "battering," or "wife-beating"; it is the "physical, sexual, psychological, and economic abuse that takes place in the context of an intimate relationship, including marriage." Yet the Framers used the term "domestic violence" to refer to insurrection or rebellion. It would be a linguistic mistake to interpret this clause of the Constitution as referring to "domestic violence" as we understand it today. "In the exposition of laws, and even of Constitutions," James Madison wrote in an 1826 letter, "how many important errors may be produced by mere innovations in the use of words and phrases, if not controulable [sic] by a recurrence to the original and authentic meaning attached to them!" As Madison saw it, we shouldn't let "the effect of time in changing the meaning of words and phrases' justify 'new constructions' of written constitutions and laws."

In a 1997 article, law professor Gary Lawson offered a lively justification for original public meaning when he compared reading a constitution with reading an eighteenth-century recipe for fried chicken. No one doubts that the meaning of a recipe is fixed. Because, as Lawson notes, every document is created "at a particular moment in space and time, documents ordinarily . . . speak to an audience at the time of their creation and draw their meaning from that point." A recipe presents itself to the world as a public document. Its meaning "is its original public meaning." Even a document with a clear original public meaning can pose problems of interpretation, of course. Some recipes, for instance, suggest adding "pepper to taste." Such nuances, however, have to do with how, not whether, to apply original public meaning. Suppose that over the centuries, cooks began substituting rosemary for pepper in the fried-chicken recipe to suit changing tastes. According to Lawson, it wouldn't change the recipe's meaning. "The recipe says 'pepper,' and if modern cooks use rosemary instead, they are not interpreting the original recipe, but rather they are amending it--perhaps for the better, but amending it nonetheless. The term 'pepper' is simply not ambiguous in this respect." A recipe's meaning also doesn't change over time simply because people refuse to follow it.

The same is true of a constitution, which, as Lawson explains, is but a recipe for government: "As a recipe of sorts that is clearly addressed to an external audience, the Constitution's meaning is its original public meaning. Other approaches to interpretation are simply wrong. Interpreting the Constitution is no more difficult, and no different in principle, than interpreting a late-eighteenth-century recipe for fried chicken." 

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