Lee J. Strang (Georgetown Center for the Constitution; University of Toledo College of Law) has posted Blunting the Instability Critique: Original Meaning Originalism and Computer-Assisted Research Techniques on SSRN. Here is the abstract:
In this Article, I bring together a widely observed phenomenon — the theoretical move toward original meaning originalism — with an unnoticed phenomenon — the use of computer-assisted research technologies and techniques (“CART”) in originalism. I argue that originalists’ conceptual move toward original meaning originalism, when coupled with their adoption of CART, will reduce the force of the Instability Critique — the claim that originalism’s reliance on history makes any resulting constitutional law unstable. Computer-assisted research techniques reduce legal instability by increasing the degree of epistemic determinacy of the foundational aspect of originalist analysis: the recovery of language conventions contemporary with ratification of the constitutional text.
Originalism rests on the premise that it is able to ascertain the Constitution’s original meaning with reasonable accuracy. This will lead to a number of virtues, one of which is thatoriginalism leads to relative stability in constitutional law. It does so by tying constitutional interpretation, and resulting constitutional law, to the Constitution’s determinate original meaning.
A recurring criticism of originalism is that, on the contrary, originalism leads to instability in constitutional law. Originalism leads to instability because it depends on an activity — the recovery of the Constitution’s meaning via the methods of history — that cannot bear the weight. Instead, the critics argue, the Constitution’s meaning is either unrecoverable in principle or, if it is recoverable, interpreters’ understanding of that meaning is necessarily subject to modification. Thus, even assuming good faith and diligent research, the criticism goes,originalism will inevitably lead to fluctuating constitutional meaning.
In response to this criticism, originalists made a major conceptual move: they rearticulated originalism as original meaning originalism in place of original intent originalism. Originalists now focused on the constitutional text’s public meaning, when it was adopted. In this Article, I build on that conceptual move, and I tie it to a modification to the method of historical research for originalism that will make the process more accurate, thereby blunting the Instability Critique’s force. In particular, I argue that original meaning originalism’s focus on the text’s conventional meaning at the time of ratification, coupled with now-widely available CART, diminishes the force of the nonoriginalist Instability Critique, identified above.
The language conventions contemporary with the Framing and Ratification are the building block of original meaning. Computer-assisted research permits — in a way unassisted techniques did not — the relatively easy and relatively accurate recovery of these language conventions. Originalism’s conceptual change, combined with this change in how originalists perform research, provides (much of) the interpretative stability claimed by originalists. However, CART will not eliminate the Instability Critique in five situations, which I describe.
Posted at 6:19 AM