Andrew Jensen Kerr (Peking University School of Transnational Law) has posted Original Public Meaning and the Rule of Recognition (34 William & Mary Bill of Rights Journal __ (forthcoming Oct. 2025)) (67 pages) on SSRN. Here is the abstract:
Framer intent no longer possesses the same cachet it once held. But Framer influence still matters for public meaning originalism, particularly for communications like The Federalist Papers, in which Alexander Hamilton, John Jay, and James Madison marketed the work of the Philadelphia Constitutional Convention to state ratifying conventions and the constituencies they represented. Contemporary originalists posit that what the Constitution meant to this public audience at the time of ratification is cemented in time forever (the fixation thesis). The starting point for my analysis is the prosaic observation that our Framers occasionally changed their minds about the meaning of constitutional text. For example, Justice Kennedy in Zivotofsky cites to Alexander Hamilton's evolved understanding that the Reception Clause is not simply a dignitary function about being a gracious social host, but that it is itself an index of an exclusive recognition power held by the executive. I thus ask: how to form an argument if a Framer changed his mind?
This Article is adjacent to trending debates about Madisonian liquidation and historical practice (i.e., “history and tradition” in cases like Bruen), but my focus on Framer influence and judicial reasoning makes it much more about authority and the rule of recognition, and when a judge like Justice Kennedy may fairly cite to this supposed kind of historical evidence at all. I thus position the historical change-of-mind as a peculiar kind of evidence separate from post-ratification liquidation or historical gloss. Factual evidence of Framer influence is layered by the binding value of constitutional authority, echoing novel “modern authority” like the Dr. Kenneth and Mamie doll experiments employed by Justice Warren in Brown v. Board of Education. Importantly, the authority of the fixation fact is based on purely empirical questions of when the Framer communicated his opinion and how widely it was disseminated. This objective inquiry brings with it unique concerns related to judicial method and argument construction.
Justice Scalia is well known for his insights regarding foreign constitutional law and legislative history, and for the categorical exceptions he made to the use of such evidence in his own concurring or dissenting opinions. However, if one takes the fixation thesis seriously, then Justice Scalia himself overlooked Justice Kennedy’s use of invalid authority when he referred to Hamilton’s post-ratification mind change regarding the Reception Clause. I explain in this Article why the lax use of fixation facts is inconsistent with our shared rules of recognition in U.S. Constitutional Law. I also explain why the judicial omission of evidence of original public meaning brings up similar recognitional concerns, as was done in the recent newsworthy case of Trump v. Anderson.
I agree the founders-changing-their-mind issue is a substantial and under theorized one for originalist methodology though I see it somewhat differently from the way the article frames it. I would say as to a particular contemporaneous interpreter (such as Hamilton on the recognition power, in the abstract's example), both the older and the newer interpretations are potential evidence of the text's original meaning. The difficult question is which to credit as the more persuasive. Thus I don't think there's anything inherently wrong with Justice Kennedy relying in part on Hamilton's later view of the recognition power, but I also think that Kennedy needed to explain more than he did why Hamilton's later view was more probative of original meaning than his earlier view. (I don't think the later view is more probative just because it is later; one can change one's mind in the wrong direction, especially for political expediency.)
As an initial view, I would consider at least two main points. First, in which situation was the Founder more politically neutral (or even coming to a conclusion against political interest), as opposed to advancing an apparent political interest? Second, in which situation was the reasoning most based on a close reading of the text, as opposed to advancing more abstract or more political reasoning?
These questions are really just versions of questions we would ask about any contemporaneous interpretation offered as evidence of original meaning — see my methodological discussion in the early part of this article. Where there are two competing interpretations from the same person, they become directly comparative questions.
Posted at 6:05 AM