Bill Watson (University of Illinois College of Law) has posted The Plain-Meaning Fallacy (Boston College L. Rev. (forthcoming 2026)) (54 pages) on SSRN. Here is the abstract:
The leading justifications for originalism all commit the same fallacy: the plain-meaning fallacy. There are compelling reasons to enforce the Constitution’s plain—as in indisputable—original meaning. But there is little to no reason to enforce the Constitution’s less than plain original meaning. The problem is that justifications for originalism help themselves to the former set of reasons to justify doing the latter. That is the plain-meaning fallacy: assuming without argument that the benefits of enforcing plain original meaning extend to enforcing less than plain original meaning too.
This Article lays bare the plain-meaning fallacy in originalist thought. It first develops an account of plain original meaning. It then shows how the plain-meaning fallacy infects several justifications for originalism, insofar as they claim to justify using originalism to resolve a broad range of litigated issues. Lastly, the Article asks what a viable originalism that does not rest on the fallacy would look like. The result, “plain public-meaning originalism,” is not wholly toothless and remains true to originalism’s roots—but can rarely play the decisive role that originalists want their method to play.
Via Larry Solum at Legal Theory Blog, who … does not not say "Highly Recommended" or indeed anything. That really makes me want to know what he thinks.
UPDATE: I don't link to, read, or even usually acknowledge the existence of X (formerly Twitter), but I'm told that Professor Solum had the following tweet (or whatever they are now called): "Like Mike Ramsey, I am still thinking about this one! But I really should have said, Highly Recommended!"
This obviously an important paper and I would need to think more about it to be sure what I think — but just off the top of my head I think the premise is wrong: most justifications for originalism do not rely on arguments based on plain meaning. For example, if you think a judge's duty is to apply the law as directed by the law's enactors, to the best of the judge's ability, that doesn't depend on it being easy to find what the enactors' directions are.
Posted at 6:15 AM