A criticism of originalism I've seen in several places recently is that originalism falsely claims to bring certainty to constitutional decisionmaking. That criticism seems not only wrong but entirely misconceived.
As its core principle, originalism claims only that if the Constitution's original meaning on a particular point can be determined, we should follow it. Originalism is agnostic on how often the original meaning can be determined. It's perfectly consistent with originalism to conclude that there are numerous situations in which the original meaning cannot be determined (and originalists may disagree on what judges or other decisionmakers should do when that happens). Thus originalism does not claim to bring more certainty to interpretation across the whole range of cases. However, as to particular questions on which the original meaning can be determined, originalism does (necessarily) bring more certainty because (as to those situations) it applies a clear rule.
One may say that (as to the U.S. Constitution, for example) there are very few situations in which the original meaning can be determined. I think that's wrong as a descriptive matter, but my point here is that this factual claim doesn't have much bearing on originalism as a theoretical proposition. I might agree, and yet still think that in the few situations when the original meaning can be determined, it should be followed. Originalism is not defeated because there are some (or even many) situations where it cannot give a clear answer.
A related "certainty" criticism is that originalism falsely claims we can determine original meaning on particular points with absolute certainty (because absolute certainty is impossible on historical matters). Again, I don't think originalism depends on making such a claim nor that many originalists would make it. To the contrary, I think most originalist accounts would say it is enough to conclude that one version of a provision's historical meaning is more likely to be correct than other versions. For example, in the introduction to The Constitution's Text in Foreign Affairs (p. 9), I wrote:
[In this book, I am seeking] the most plausible [original] meaning of the language, but I do not claim that historical interpretations can often be established beyond all reasonable doubt. History may be nuanced, contradictory, or incomplete; often we can only guess at a text's historical meaning. In making interpretive judgments, we only ask: is a proposed interpretation more likely than not, or more likely than alternative explanations? In the interests of style and brevity, I may often say that text and context demonstrate particular meanings, but I mean only that the proposed meaning is the best available, not that it is proven beyond all doubt.
Thus originalism's core claim should be understood to be that we should follow the text's most likely original meaning, if it can be determined that one meaning is more likely than others. Originalists do often say something like "X is the original meaning of this phrase," but that is usually a shorthand for "X is more likely than not the original meaning of this phrase." Originalists may have different ideas about the level of confidence needed before selecting one meaning as "the" original meaning, but I think it's generally recognized that there is a comparative evaluation at work. It's likely that most phrases have several possible original meanings, but that does not undermine the originalist inquiry, which is to decide (where possible) which is the most likely.
Posted at 6:25 AM