Aaron L. Nielson (University of Texas at Austin – School of Law) has posted Aggregrating Original Meaning (Columbia Law Review, Vol. 127, forthcoming 2026) (53 pages) on SSRN. Here is the abstract:
Public-meaning originalism—the theory that the meaning of legal texts, including the U.S. Constitution, is fixed when authoritatively adopted and binding until authoritatively changed—is ascendant. Although scholars debate this theory, a majority of U.S. Supreme Court Justices describe themselves as originalists and advocates increasingly advance arguments sounding in public-meaning originalism. And even jurists who are not originalists often recognize history’s relevance.
The Court, however, has overlooked a conceptual puzzle—and so has everyone else: What should originalists do when deciding a case with multiple steps, each requiring its own originalist analysis? For example, courts routinely decide what a constitutional provision means and whether it has been incorporated against the States. Courts also determine whether a right has been violated and what the remedy should be. And courts often decide whether the Constitution creates a power and how to apply it to “edge” cases. Because finding original-public meaning is difficult, however, judges cannot be certain they have resolved each step correctly. Nonetheless, after resolving one step, they proceed to the next step as if resolution of the first was certain. Such inattention to possible error runs headlong into the mathematical concept of aggregation, which requires using the product rule or conditional probability when assessing the likelihood that multiple claims are true.
This Article introduces aggregation into the originalist literature and demonstrates how the premises of public-meaning originalism support accounting for aggregate uncertainty. Yet although aggregation may help judges reach decisions more consistent with original meaning, its disruptiveness also heightens the significance of many other concepts and debates, such as what it means to “prove” the law, the strength of stare decisis, the scope of construction, the validity of liquidation and tradition, the legitimacy of compensating adjustments to offset non-originalist precedent, and the value of corpus linguistics. Aggregation, however, should be more than just disruptive. Rather, it may add at least some additional stability to the law by shoring up familiar features of constitutional doctrines that originalists thus far have struggled to defend, including the presumption of constitutionality, clear-statement rules, and hybrid rights. It may also provide additional arguments in support of originalism itself.
Via Larry Solum at Legal Theory Blog, who says “Fascinating and recommended” and has comments.
Posted at 6:05 AM