A Thought Experiment: Does Originalism Make Sense?

In Kyu Chung at Harvard Law Review (HLR): Imagine that the people yesterday gathered to draft a new Constitution, which includes a First Amendment that says: “The government shall not abridge the freedom of speech.”  Today, a federal court hears a case featuring a First Amendment challenge against a public official who blocked the plaintiff from spamming repetitive posts on her (the public official’s) social media page.

Let’s further stipulate three things.  First, everyone in this hypothetical world is an originalist.  (What exactly that means is a surprisingly complicated question.  Suffice it to say for now that everyone is committed to the idea that the meaning of the constitutional text was fixed at the time of its adoption, that is, yesterday, and that this original meaning can and should resolve legal disputes implicating the Constitution.)  Second, everyone has perfect access to all records and discussions related to the constitutional enactment.  The Framers are willing to share — transparently and in good faith — their intentions underlying each provision; after all, drafting the Constitution is fresh in their memories.  Third, we’ll take a leaf out of the classical economist’s book and assume that everyone is reasonable and smart.

Question: would the people of this hypothetical world come to a unanimous agreement about the correct legal outcome of their first First Amendment case?

Common sense dictates that the answer is no.  There are many questions of constitutional interpretation embedded in the case, and any ruling pronounced will engender several more.  Does the public official count as “the government” when she is using social media?  Is blocking on social media “abridging the freedom”?  Does posting on a website count as “speech”?  Does repetitive posting?  What about the repetitive posting of pictures rather than words?  Obscene pictures?  What if perfectly decent pictures might be mistaken for obscene pictures and get erroneously blocked?

Each question invites disagreement among reasonable minds.  If you were to grab ten people on the street and present these questions, they would likely give a wide array of responses — even if you present the questions as pertaining to the linguistic or legal meaning of the text.  That qualification bears emphasis.  It is trivial to observe that in our pluralistic society, different people have different opinions and values about free speech.  By contrast, one might be tempted to think that even those people can agree about the allegedly factual question of determining the public meaning of the words “the freedom of speech,” either in plain understanding or in legal context.  A bit of reflective simulation should clarify, however, that the façade of semantic rigidity barely cloaks the inherent flexibility of language necessary to correspond to our complex form of life.

But therein lies the problem. An originalist — a bona fide originalist, at any rate — should be committed to answering yes, that everyone would agree whether the public official violated the First Amendment…

More here.