An essential tool in the chest of legal practice is the accurate, or at least persuasive, interpretation of the language of the law. It begins in law school where students are trained in legal maxims obscured in Latin diction, hoary canons of statutory construction, and all manner of legal doctrines and concepts bearing coded labels. As applied in later practice, lawyers advocate for particular renditions of language to advance their cause. But ultimately it is our judiciary, of course, that is the final arbiter of the meaning of the law.

Enter originalism, a doctrine that came on the legal stage in the 1980s, proposing a textual approach to legal interpretation. Its proponents saw this as the solution to ascertaining the original understanding of a particular law, either by focusing on the original intent of the authors of the law, but more often by examining original public meaning as gauged by the common understanding of persons at the time of the law’s creation. This required resort to contemporaneous (though limited) sources, such as dictionaries, grammar books, other legal documents, and even public debates and events. Other interpretive methods, such as legislative history, were discounted. The understanding discerned was then adopted as a singular objective proposition of legal interpretation, rendering constitutional meaning static in time, without regard to evolving legal, social, and political norms, which were precluded as too subjective to convey authentic meaning. Alternative meanings could only be recognized by constitutional amendment. This original public meaning approach was perhaps most notably advanced by the late Justice Scalia. As he wrote in District of Columbia v. Heller, the theory of original public meaning is premised on “the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’.”