At Dorf on Law, Eric Segall: There is No Original Public Meaning of Imprecise Constitutional Text: A Tribute to Professor Richard H. Fallon, Jr. From the introduction:
[Recently] Mike [Dorf] wrote a poignant tribute to Professor Richard H. Fallon, Jr., a legendary law professor at Harvard Law School. Dick was a brilliant scholar and wonderful human being. Our paths crossed numerous times over the years, and he was always incredibly generous both to me and my work, whether he agreed with what I was saying or not. That is just who he was, and I can't add anything of personal value to Mike's wonderful post.
Instead, and maybe selfishly, I want to honor Dick in a different way. I have spent much of my academic career reading, writing, and talking about originalism, culminating but not ending in my book "Originalism as Faith." Subsequent to the publication of that book, Dick wrote what I think is one of the finest articles ever written on the subject, "The Chimerical Concept of Original Public Meaning."
Please don't let the term "chimerical" distract from the thesis of this piece, which is that for the constitutional provisions that lead to litigation, there is no original public meaning, and therefore the entire structure of modern originalism is incoherent. I want to summarize this fine and astute article as a tribute to one of this country's most important legal minds (and to support what I have been arguing for decades). Of course, my first choice is that you, the reader, read the entire article, which I can't do justice to here. But the highlights demonstrate without a doubt the absurdity of a constitutional theory that relies on the original public meaning of imprecise constitutional text. …
Posted at 6:06 AM