Alexander Tsesis (Florida State University – College of Law) has posted Originalist Framing Of Free Speech Doctrine (University of Pennsylvania Law Review, Volume 173 (forthcoming 2025)) (30 pages) on SSRN. Here is the abstract:
The Supreme Court has increasingly signaled the importance of history and tradition to constitutional interpretation. Reliance on original meaning and understanding appears in a broad array of cases that stretch the gamut from abortion and gun rights. Often those references, however, sound conclusory rather than the careful articulation and contextualization of constitutional norms.
The newest trend on the Court has led some scholars to argue that the meaning of constitutional provisions, phrases, and clauses is tied almost exclusively to views of nation’s founders or to the linguistic understandings of the American people at fixed events of the nation’s constitutional development, such as at the points of ratification of the Bill or Rights or Reconstruction Amendments.
This Essay demonstrates that, at least in the area of free speech law, the Supreme Court’s recent efforts to connect doctrine to original meaning are on shaky historical ground. Indeed, a purely originalist interpretation of the First Amendment would undermine core doctrines of free expression.
The introduction, which is somewhat longer than the abstract, makes several general assertions about originalism that I think are incorrect:
[W]hen confronted with vague or ambiguous rules, principles, and standards, originalists admit that courts must, more often than not, engage in normative construction of historical meaning of texts.
Some originalists say this and some do not. This goes the the issue of constitutional construction, which is controversial among originalists.
Originalist theories assume the existence of historical certainty and founding era legal methods capable of incontrovertible ascertainment by judges committed to history and tradition.
Few if any originalist theories assume anything this definite. Originalist theories generally assume that textual and historical materials can at least some of the time produce relatively clear answers, or at least answers that are more plausible than alternatives, but not necessarily more than that.
The definitions of clauses, originalists believe, can be ascertained by their plain meanings and then applied to resolve contemporary constitutional questions.
No, not necessarily from "their plain meanings". Nearly all originalists think that context is critical to understanding text. Also, originalists believe historical meanings can sometimes be applied to resolve contemporary constitutional questions, but not necessarily more than that.
These points don't really seem relevant to the main thrust of the article, which is:
[A]t least in the area of free speech law, the Supreme Court’s recent efforts to connect doctrine to original meaning have been on shaky historical ground.
I'm entirely willing to believe that.
Posted at 6:07 AM