I Know What $20 Means

A response to Michael L. Smith regarding a comment by Lawrence B. Solum.

I dislike President Jackson as much as the next guy, so I asked Stable Diffusion to put Captain Picard on a twenty and this is what it (eventually) gave me.

I started writing this last week as an edition of Worthy Reads for April, but I ended up writing so much about the first entry that I had to break it out as a standalone article. That’s why it looks like a Worthy Reads. That’s also why my research is light and my tone even more informal than usual. This was supposed to be a three-paragraph blurb for Michael L. Smith, not an essay on constitutional interpretation!

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“Originalism and the Meaning of ‘Twenty Dollars’” by Michael L. Smith is worth your time. An excerpt:

The Seventh Amendment states:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

…Originalists claim that their method leads to answers and constraints judges. …[But] is the original meaning of “dollar” tied to the value of the Spanish silver dollar at the time of the Seventh Amendment’s ratification in 1791? Or is it tied, instead, to an amount of silver that happened to be in a particular coin?… When one steps away from theory and considers the needs of modern, real-world actors, originalism is revealed to be a source of little more than detached theorizing rather than promised answers.

I really enjoyed this bouncy little essay by Michael Smith, who believes originalism is a fancy-sounding fraud. (He cites Eric Segall a lot, to give you the sense of where he’s coming from.) I am an original-public-meaning originalist, but Smith’s challenge is a fun twist on an old argument.

You see, one of my favorite critiques of non-originalist approaches to legal interpretation is that they destabilize the meaning of plain legal texts so profoundly that unelected judges are empowered to rewrite those texts unilaterally. Michael Stokes Paulsen drives this home in “Is Bill Clinton Constitutional?: The Case for President Strom Thurmond.” Paulsen takes the constitutional provision that says “the president must be at least thirty-five years old” and applies the prevailing non-originalist approach to it. This approach interprets the text according to its purpose and the broader spirit of the Constitution in light of changing modern conditions, not the literal words “thirty-five years.”

As a result, Paulsen argues (successfully, in my view) that a court following modern non-originalist constitutional theory could (perhaps must) hold that no one under the age of 60 can be president. When the article was published (in 1996), this would have disqualified then-President Bill Clinton, Vice President Al Gore, and House Speaker Newt Gingrich, leaving Senator Strom Thurmond as the legal POTUS. (Ah, remember the days when we were ruled mostly by people under 60?) This was obviously absurd, so the paper demonstrated that the “living constitution” theory had serious flaws, and originalism was the way to go instead.

In this paper, Smith turns the tables on Paulsen. (I have no idea if he intended to, or if Smith has even read that Paulsen article.) “Aha!” says Smith. “You say the living constitution theory destabilizes the meaning of ‘thirty-five years old’, but guess what? Your beloved originalism destabilizes the meaning of ‘twenty dollars’ just as badly!’”

Seventh Amendment Dollars

The Seventh Amendment denies a right to trial-by-jury in lawsuits “where the value in controversy is less than twenty dollars.” That's a very important provision for a lot of people who want to file lawsuits (and others who want to be shielded from lawsuits).

“So,” Smith asks, “what’s the original public meaning of ‘twenty dollars’?”

Originalism says that we must always interpret legal texts according to their original public meaning; that is, the meaning the words of the text itself would have objectively borne, if read fairly, by the educated public at the time, using contemporary legal and linguistic conventions. The meaning of the text is fixed at the time of its passage, and remains so until amended by the democratic process (not by judges) or until the sun goes out, whichever comes first.

Today, dollars are pieces of paper (or digital ledger entries) that the Federal Reserve arbitrarily defines as being worth a dollar, and we then collectively decide what everything costs based on how many dollars there are and how many we have. However, t the time of the Seventh Amendment, there was no paper money, no digital ledger, and no Federal Reserve! At that time, Congress defined “dollars” as a coin “of the value of a Spanish milled dollar as the same is now current,” instructing that the U.S. dollar “contain three hundred and seventy-one grains and four sixteenth parts of a grain of pure, or four hundred and sixteen grains of standard silver.” That definition is from the Coinage Act of 1792, which is repeated almost identically from an Act of 1786, and originalists (or at least Lawrence Solum) have cited this definition favorably.

Professor Smith observes that the Coinage Act of 1792 suggests several possible meanings for the original public meaning of “the value of [a] dollar” in the Seventh Amendment:

• A Seventh Amendment dollar's value equals the present value of 371.25 grains of pure silver.

• A Seventh Amendment dollar’s value equals the present value of 416 grains of “standard” silver. (I think “standard silver” is what we today called “sterling silver,” or .925% purity, but you would need a monetary historian to confirm.)

• A Seventh Amendment dollar’s value equals the present value of a Spanish “piece of eight” coin minted in 1789. Unfortunately, the modern price of a piece of eight coin varies wildly based on condition, origin, verified authenticity, and exciting factoids like whether the coin was owned by pirates.

• A Seventh Amendment dollar is $1 from 1789, but adjusted for inflation. Adjusting for inflation over such a long time span is extremely difficult, both because we don't have good data and because fundamental changes in how the economy works and what people buy make it an apples-to-oranges comparison.

• A Seventh Amendment dollar’s value equals whatever Congress defines a dollar as being today. Since Congress defines a dollar today as a Federal Reserve note, the “twenty dollars” in the text means $20 today (and always will). This position is simple, but has the concerning side effect that Congress can effectively amend this provision of the Constitution by simple majority: if Congress wants to make it easier to sue under the Seventh Amendment, it can simply debase the currency!

• A Seventh Amendment dollar’s value equals the current value of Spain's primary currency today (the Euro).

In 1789, the Venn diagram of all these different definitions was a circle. They all meant “dollar.” Today, these definitions have diverged, and the originalist must decide which branch of the tree to follow. Depending on which definition of “dollar” you select, the Seventh Amendment threshold for a lawsuit large enough to guarantee a jury trial, in today’s dollars, can range from $20 to well over $10,000, with most definitions clustering somewhere in the neighborhood of $300-$600. (Smith did the math, but I verified it.) A very technical quibble about this definition thus opens or closes the doors of the courthouse to a huge range of litigants!

The Search for Original Meaning

Often, when faced with apparent ambiguities like this, originalists can turn to contemporary documents to shed some light. Contemporary discussions often show that, despite technical ambiguity, there was a single conventional meaning generally agreed upon. That, then, becomes our controlling meaning. But we don’t have documentation for the Twenty Dollars Clause. An anonymous 2005 Note in the Harvard Law Review says:

While the Founders left a veritable encyclopedia on the civil jury right, the Twenty Dollars Clause itself has no history: one afternoon, in a closed door session on Madison’s proposed constitutional amendments, the Senate added the Twenty Dollars Clause to what eventually became the Seventh Amendment. In the great debates leading up to the Amendment’s adoption, no Framer or Amender argued for (or against) the Twenty Dollars Clause; no state submitted a proposed amendment with similar wording along with its ratification of the Constitution; nor did any contemporaneous state constitution provide for a civil jury conditioned on a minimum amount in controversy. Soon after ratifying the Amendment… Congress passed the first Judiciary Act, which limited federal jurisdiction in diversity cases to those containing at least five hundred dollars, so the mysterious Twenty Dollars Clause was mooted before it was ratified.

Originalists are left to resolve the ambiguity with no guidance from the law’s authors at all. Originalists (for all our caterwauling against legislative history) love guidance from legislators, so this is a bit like asking originalists to build a cabinet with fifteen nails and no hammer! Yet it must be done, because people need to know whether they can get a jury trial for their lawsuit.

Smith argues that originalists have no credible way of resolving this ambiguity, except by slyly imposing their own normative preferences, and that originalism is therefore useless and stupid. All originalism does, Smith argues, is give theorists a sheen of “objective” legitimacy when, in fact, they have just as much discretion to rewrite law under originalism as they did under living constitutionalism:

Originalism promises answers—or at least, it ought to if it of to be of any use to legal actors. Yet in response to the seemingly simple question: “What does ‘twenty dollars’ mean?” the theory comes up short. It is therefore little surprise that debates over the meaning of the more exciting constitutional provisions continue to rage on and likely will continue, unresolved. When one steps away from theory and considers the needs of modern, real-world actors, originalism is revealed to be a source of little more than detached theorizing rather than promised answers. In the high stakes debate over how to interpret the Constitution, a theory of interpretation that fails to inform modern actors what “twenty dollars” means is a theory worth avoiding.

Smith ends his article there.

The Standard is Not Perfection

I’m not a particularly smart or qualified originalist, and I know next to nothing about the Seventh Amendment—but I am an originalist, so I suppose I should at least try to argue that my theory is coherent!

First, though, I think Smith flatters originalists rather too much. He says originalism “promises answers.” I don’t think originalism does that. Originalism promises to make judges ask the right questions, and it promises to rule out certain wrong answers. No interpretive theory yet discovered provides all the answers. Justice Barrett agrees that originalism does many things, but it cannot do everything. In an imperfect world, the most we can ask of a theory of constitutional interpretation is to identify and rule out some wrong answers. Even if judges agree about what precisely is ruled out by a given theory (and, as Barrett says, they won’t), there might still be more than one possible answer remaining after applying the theory.

This occasional indeterminacy seems to be an unavoidable feature of not only law, but human language in general. When it happens, judges must apply another theory or principle in order to select between the remaining options. (I understand that we’re now calling this step “the construction zone.” How to behave in the construction zone remains a matter of pitched debate even among originalists.) Smith notes, reasonably, that a judge will be sorely tempted to take advantage of the construction zone in order to simply pick the answer she likes best for policy reasons. However, insofar as the theory has served to foreclose certain clearly wrong answers, while ensuring the remaining options are built on good reasons, the theory has still done good work by narrowing and testing the options open to the judge. An interpretive theory cannot be judged on whether it eliminates indeterminacy, but it can be judged, in part, on whether it reduces indeterminacy compared to its alternatives. Remember Heal’s Law: The standard is not perfection; the standard is the alternative.

On this score, how does originalism do? Well, if Smith is correct about the Seventh Amendment, then it is fairly embarrassing for originalists that the phrase “twenty dollars” appears to have six-ish possible “original public meanings,” with wide-ranging consequences for litigants.

However, it is worth recalling that Paulsen’s “Is Bill Clinton Constitutional?” article was inspired by his living-constitutionalist students having this exact same problem with the “twenty dollars” clause! It appears to me that all six-ish possibilities would remain open to a living constitutionalist plus several more, such as…

…the living constitutionalist might decide that because “twenty dollars” meant a lot of money at the time, this clause expresses the principle that litigants need to have a lot of money at stake in order to get a jury, which the judge will define as one dollar more than the value in controversy in the case before her according to her best reasoned judgment. (This was Paulsen’s students’ instinct.)

…or, alternatively, that the passage expresses the principle that litigants need to have a non-trivial amount of money at stake, but without accounting for the fact that money is a bigger obstacle for some people. This thinking could lead to the conclusion “twenty dollars” in the Seventh Amendment means three dollars for a poor litigant and a million dollars for a rich one.

…or that the meaning of “twenty dollars” must be subjected to one of the “balancing tests” Justice Breyer loved so much, and God help the litigants.

I have other ideas, but this suffices. Even if originalism leaves multiple options on the table, it appears to leave fewer options than alternative methods¹ (with one exception, which we will come back to).

It should be said, too, that this is a particularly tough clause for originalism. Currency itself is one of humanity’s most abstract, arbitrary inventions. Just ask an economist how many dollars there are in the world, and enjoy his hour-long explanation of M0, MB, M1, M2, M3, and MZM money supply. Then ask him what the value of a dollar is today (to say nothing of 1789), and you’ll be there another hour. Value is complicated! Money is weird!

By contrast, Paulsen’s critique of the living constitutionalists relied on the “thirty-five years” clause. Smith can’t turn Paulsen’s critique around on the originalists, because originalism works pretty darned well on the “thirty-five years” clause. Aside from perhaps some Pirates of Penzance-style quibbling about leap years, I don’t see any alternative meanings for “the Age of thirty-five Years” under originalism, but, as Paulsen showed, non-originalists do have problems with that passage (with one exception, which, again, we will come back to).

The Correct Answer

Still, litigants do need to know whether they have the right to a jury trial under the Seventh Amendment. Even if originalism eliminates more options than its alternatives, a judge has to whittle it down to one option for a ruling, and it would be dismaying if originalism gave her six equally plausible options to choose from. Fielder’s choice constitutionalism is no way to do law.

Fortunately, I don’t think all six are equally plausible. I speak only for myself, not for originalism (I am only a dabbler), but I think one of the six definitions we’ve considered is clearly closest to the original public meaning: Congress decides what a dollar is. The only reason we are even looking at Spanish pieces-of-eight and silver grain prices is because Congress defined a dollar in those terms in the Coinage Act of 1792, which all involved in this conversation have taken as canonical. Other things were used as currency in 1789 America, like gold and the Dutch “lion dollar” (which had a different amount of silver in it), but Congress didn’t define “dollars” in those terms, so we never even considered them. Often, originalists look to Congress’s definitions of words in order to understand how those words were understood by the public at the time, but that’s not what we’re doing here. “Dollar” has no unambiguous public meaning but for Congress’s act of definition! We look to Congress in this case not as a reflection of the accepted contemporary definition, but because Congress is the source of the accepted contemporary definition.

Now, it so happened that Congress, in this instance, picked an existing currency to peg to. It could have pegged its new coin to a different currency, used the same names, and everyone still would have understood the new coin to be a "dollar." Indeed, when Congress later changed the peg in the Coinage Act of 1834, no one (to my knowledge) suggested that the Seventh Amendment dollar and other statutory references to “dollars” would remain on the old peg. That silence speaks volumes. Therefore, “Twenty dollars” is whatever Congress says “twenty dollars” is.² That’s the original public meaning.

There are several problems with this.

Congress Rewriting the Constitution?

First, it allows Congress to change the meaning of constitutional provisions simply by manipulating the currency. That’s a little worrisome. If Congress can just legislate the meanings of words in the Bill of Rights, could Congress just define Slate as “not press” because of all the misinformation it publishes, and thereby strip Slate’s First Amendment protections? Yikes! That would be bad!

However, Congress having the power to define in the specific case of “dollars” is actually not weird or scary. Article I, Section 8 expressly gives Congress:

Power… To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures

The Constitution grants Congress plenary power over the currency. When that same Constitution later refers to currency in the Seventh Amendment, without imposing restrictions on Congress’s power over that currency, it is reasonable to infer that the Constitution does not mean to impose any further restrictions. Congress can manipulate the meaning of the Seventh Amendment because Article I, Section 8 says it can. It cannot do the same for most other constitutional text, because the Constitution doesn’t say it can fiddle with the meaning of free exercise or whatnot. I do not think that my theory expands Congress’s recognized power to dictate how the Constitution is construed.

Indeed, originalists already accept (as do most others) that Congress has the power to change the meaning of a constitutional text, provided the Constitution grants Congress the authority to do so. For example, the original public meaning of “the Recess of the Senate” (Article II, Section 2) is generally accepted to be, more or less, “whatever the Senate says it is,” because “Each House may determine the Rules of its Proceedings” (Article I, Section 5) and Senate recesses are part of Senate procedural rules. The Supreme Court unanimously agreed in NLRB v. Noel Canning (2014) that “for purposes of the Recess Appointments Clause, the Senate is in session when it says it is". Both of the originalists on the Court at that time objected mainly that the Supreme Court did not go far enough in reserving this power to Congress alone. (The majority added an atextual proviso.) Just as the “recess of the Senate” means whatever the Senate says it means because of the Rulemaking Clause, so too does “twenty dollars” mean whatever Congress wants it to mean because of the Coinage Clause.

We didn’t even have to go into the “construction zone”; originalism, by itself, yielded a single answer that I think is unambiguously correct. Of course, as then-Professor Barrett said, other originalists might disagree with my conclusion, and I remain open to evidence on all sides. However, originalism has carried us through to a single conclusion all by itself, starting from a smaller menu of options than most of its alternatives, and, at each step, its reasoning advanced for more objective reasons more grounded in the democratic legitimacy of the Constitution. Originalism isn’t perfect, but it did okay here, and it certainly isn’t “a theory worth avoiding.”

James Heaney Rewriting the Constitution?

My answer seems pretty desirable to me. For one thing, “twenty dollars is twenty dollars” is obviously simpler for judges and others to apply. Nobody has to pull out an inflation calculator or ask about silver fineness!

For another thing, one of the strongest concerns motivating originalists is that judges must construe the Constitution in a way that has democratic legitimacy, which means unelected judges can’t go running off making up new laws by themselves. Only elected officials, working through the brutal legislative grind of bicameralism and presentment, have the legitimacy to make law. In the absence of any determinate original public meaning of “dollar” independent of Congress, tethering the Seventh Amendment to Congress’s definition of “dollar” happens to be a safe way to provide that legitimacy.

Smith may object that it is awfully suspicious that I happened to end up with the answer I was hoping to arrive at. He may speculate that I did exactly what he accuses originalists of doing: I faced an ambiguity, I resolved it based on my non-textual normative preferences, and then I invented a post hoc rationalization for it. Perhaps I didn’t even realize I was doing this. After all, cognitive bias is a hell of a drug!

All I can say in my defense is that I initially reached a different conclusion. I reluctantly concluded that the structure of the Seventh Amendment compels us to adjust “the value of twenty dollars” for inflation. (Much of my reasoning for this conclusion survives in Footnote 2.) Only as I was working through the several embarrassing results of this (which I owned up to) did it click with me that every definition of “dollar” on offer depends on Congress, which makes Congress’s definition the primary “sense” of the clause. I then rewrote.

My point is, I was willing to accept that my interpretive method led me to a conclusion I found undesirable, and I was willing to defend that conclusion anyway. (I just got lucky, and ended up not having to.) If I am wrong about the Seventh Amendment—and I could be—my wrongness will have to be shown on the grounds of objective original public meaning, not my personal policy preferences. I will do my best to keep my personal preferences from infecting my objectivity. Doing so is very hard, because human beings are weak and power corrupts, but we must try anyway, as hard as we can. What more can we ask of a judge?

Larry Solum Rewriting the Constitution?

The final problem with my answer is that, if I’m right, then, prominent originalist Lawrence B. Solum was apparently wrong.

Solum said (in a short digression in his paper Surprising Originalism), “The primary referent of the term ‘dollar’ in the Seventh Amendment is the Spanish silver dollar or more precisely any coin with silver content approximately equal to that of that ‘dollar.’” This sentence and its surrounding context strongly suggest that Solum believed that the meaning of “dollar” was fixated at 371.25 grains of pure silver at the time of the Seventh Amendment’s proposal. (If Solum were correct, then the Seventh Amendment threshold guaranteeing a right to a jury trial would be $391.82, using this morning’s silver prices, not $20 as the text states.)

Now, I can, reluctantly, admit the possibility that I am righter than Lawrence Solum. However, I don’t think it’s necessarily true that Solum was wrong in the first place.

In his paper, Smith borrows a distinction drawn by Christopher Green between the “sense” and the “reference” of a provision. Green argues that the sense of a constitutional provision is fixed at the time, but the reference can change over time.³ Smith uses the example of the Second Amendment: for the Founding Fathers, the sense of “arms” was “bearable weaponry,” but the reference for “arms”—the actual real-world objects they had in mind—were muskets and blunderbusses. Of course, the Second Amendment protects the sense, not the reference, or else we would only have the right to bear muskets and blunderbusses.

However, because the Second Amendment is so controversial (and many mis-educated people sincerely believe the Second Amendment only guarantees the right to bear muskets), I prefer to explain the sense/reference distinction using the First Amendment instead. For the Founding Fathers, the sense of “free speech” was any kind of communication bearing scientific, academic, political, artistic, and/or religious meaning (so, most communication except libel, slander, or obscenity). But the reference for “free speech” was men yelling about misgovernment on boxes in parks, pamphleteers tacking up handbills, and physical newspapers printed out on physical presses. Of course, the First Amendment protects the sense, not the reference, or else the government could freely censor blog posts it doesn’t like, put people in jail for sending emails supporting the opposition party, and shut down NYTimes.com. Blogs, emails, and online newspapers, like AR-15’s, didn’t exist at the Founding, yet all are protected by the Constitution.

The sense of the Seventh Amendment’s “value of twenty dollars” is, I have argued, “whatever Congress says twenty dollars is worth.” However, it is undoubtedly true, as Solum points out, that the reference for the Seventh Amendment at the time of its passage was the Spanish piece of eight. He says as much in the offending passage: “The primary referent of the term ‘dollar’ in the Seventh Amendment is the Spanish silver dollar.” If all Solum is doing is establishing that the contemporary reference for the Seventh Amendment is the coin, and he is not arguing that this reference was fixated as the sense of the clause for all time, then he and I don’t disagree. We’re just looking at different sides of the same (Spanish) coin.

These Papers Are Frustrating

I sincerely enjoyed Professor Smith’s paper. It was smart and well-researched. I also enjoyed puzzling through the problem he posed for originalism. I think I’m a better lawyer for having done so.⁴

At the same time, Smith’s paper belongs to a genre of anti-originalist critiques that flow out of the Eric Segall school of constitutional thinking with clockwork regularity. Their conclusion is always, always the same: “I don’t think originalism can honestly solve the problem I have posed, therefore originalism is a worthless fraud and originalists are just making up justifications for imposing their own policy preferences on the land.”

I do think originalism can honestly solve the problems these professors have posed, including the one in this paper. Originalism has been growing in response to academic critique for forty years, from the fragile beginnings of Edwin Meese, Robert Bork, and Original Intent back before I was born, to its present young adulthood as Originalist-Textualism. The method is not perfect, nor is it even finished growing, but originalism is trying to provide an interpretive methodology for judges that isn’t just “I’m an unelected judge and I think abortions are good so abortion is a constitutional right now” (or “I like babies so abortion is unconstitutional now”). When originalist theory falls short (and it has), originalist scholars try to find a path forward.

After all, what’s the alternative? The Eric Segall school accuses originalist judges of covertly imposing their own value judgments on the nation… but their theory of constitutional interpretation is that judges should openly impose their own value judgments! I try my hardest to protect my legal objectivity from being corrupted by my value judgments, which is admittedly hard, and the other side jeers at my side whenever we slip (as we all do)… but they tell me that it is impossible to be objective, that I should let my value judgments drive my legal theorizing!

The principal alternative to originalism, whether you want to look at it through a moderate Breyer lens or a radical Dworkin lens, is not a more refined and workable theory of the rule of law; it is the abandonment of the rule of law in favor of rule-by-judges, a good ol’ fashioned oligarchy where the nation is run not by The People, but by the Ivy League law schools. If originalism turns out to be unworkable, the appropriate solution under the American theory of popular sovereignty is not to abandon originalism and embrace living constitutionalism (or purposivism⁵ or realism or the Living Tree Doctrine or Adrian Vermeule's right-wing "common good constitutionalism" or any of the other hats The Alternative wears). The appropriate solution is to abolish the judicial branch, stop pretending we have a meaningfully binding Bill of Rights, and adopt legislative supremacy instead. (We’d still have judges, but they’d all serve at the pleasure of Congress, and Congress would be the court of final appeal.) After all, if the written rule of law has no objective meaning, then there can be no rule of law, only rule by men. At that point, we may as well be ruled by the elected people who are actually accountable to us, instead of by Ivy Leaguers in robes issuing arbitrary decrees who rule for life.

Even though I often enjoy them individually, I have come to resent articles that lob bombs at originalism, but offer not even the shadow of a workable, justifiable alternative. If originalism is wrong, or indistinguishable from living constitutionalism, tell me why the judiciary should exist at all, and we can go from there.

(On the one hand, this rant is not entirely fair. On the other hand, I think it’s more fair than most of what Eric Segall angrily tweets.)

Smith’s Alternative

One thing that endeared me to Smith’s paper—prompting me to share it with all you lovely people—is that Professor Smith does offer an alternative. It is inexplicable to me why Smith doesn’t even mention it in his paper on the meaning of “twenty dollars,” but he does have an idea, it is novel, it speaks directly to the “twenty dollars” problem, and it seems to me that it at least could justify a judiciary. Smith’s alternative is the Present Public Meaning approach.

I have already written far too much (thousands of words more than I intended) about one short law review article; I will not ruin your day by subjecting you to a full examination of two law review articles. But I did promise earlier that I would come back to this alternative. So I will be brief.

Originalists think that the meaning of a legal text is determined by its original public meaning. In other words, “twenty dollars” in the Seventh Amendment means whatever the educated public would have understood “twenty dollars” to mean in 1789, when it was proposed.

Smith proposes, instead, that the meaning of a legal text be determined by its present public meaning. In other words, “twenty dollars” in the Seventh Amendment means what the educated public understands “twenty dollars” to mean today. Under this theory, the sense of a constitutional text and its reference are always identical.

This approach to constitutional interpretation solves our Seventh Amendment problem very neatly. No matter how you slice it, the present public meaning of “the value of twenty dollars” is twenty bucks! No mucking about teasing apart whether a Federal Reserve note means the same thing as a bunch of old silver grains, no looking at ancient historical reference texts, no moaning about the lack of reference texts for this specific problem. We all know what twenty dollars means without the need for further interpretive work. It’s unambiguous, constraining, and (at least in this instance) much easier to implement.

That’s the theory’s strength. I think the theory also has serious weaknesses. I don’t ultimately consider the “present public meaning approach” democratically justified or practically desirable.

A large chunk of Smith’s argument for the democratic legitimacy of present public meaning theory is that the Constitution does not have democratic legitimacy (because the franchise was much more restricted at the time of its ratification). This strikes me as a plausible argument for a new Constitution altogether, but I don’t see how it supports his theory of interpreting our current Constitution. Smith seems to assume that the People want broader contemporary meanings applied to provisions like the Eighth Amendment, but provides little evidence for this. Indeed, every poll on the death penalty I’ve ever seen suggests precisely the opposite, at least for Amendment VIII.

That brings us to practical problems. I will very briefly touch on two of them.

As I explored at very considerable length earlier this year, the public meaning of “involuntary servitude” has shifted over time. It shifted between the passage of the Northwest Ordinance and the 1865 proposal of the Thirteenth Amendment (because the institution of voluntary servitude had died out in the interim), and it shifted far more dramatically in the century-and-a-half since then. Under a present public meaning approach, that shift means that the Thirteenth Amendment would require the abolition of military conscription and prison slavery. The Thirteenth Amendment would suddenly mean this without any intervening act by any democratic body, but simply by continuing to exist while the meaning of its words shifts. Now, perhaps you’d celebrate the abolition of conscription and prison slavery as a win for human rights. I might even agree with you. But applying the present-public-meaning approach to the Thirteenth Amendment would also abolish chores (yes, chores: making your child do the dishes after dinner) and it would render Good Samaritan laws, duty-of-care laws and even some child neglect laws unconstitutional. The present public meaning of “involuntary servitude” (at least as Prof. Andrew Koppelman understands it) is so broad that it seems to include any obligation of service that the obligand does not actively will at the present time, so parents who don’t want to do parenting anymore could leave their infants exposed in the woods to die—all because “involuntary servitude” no longer means what it once meant. That seems both normatively bad and an absurd way to do law.

Fortunately, when we constrain ourselves to the original public meaning of the Thirteenth Amendment, none of this mischief follows. “Involuntary servitude” bears the same technical meaning it did in 1865, and abolishes the same things today that it abolished then. (I catalogued those things in my article.) We could, of course, choose, democratically, to repeal the draft or abolish prison labor or even (if we wanted to be evil) abolish child neglect laws. We could even amend the Constitution to make them all unconstitutional! But we would have to make that decision consciously, by a positive act of law, rather than by letting the random impersonal forces of linguistic drift change the meaning of our Constitution for us.

My second practical problem will sound crazy, but I am completely serious. The problem is not that I am crazy; the problem is that the Present Public Meaning theory has crazy consequences.

The Republican Form of Government Clause (Article IV, Section 4) provides that “The United States shall guarantee to every State in this Union a Republican Form of Government.” Every civics teacher explaining this clause to students for the first time cracks a little joke to the effect of, “Don’t worry! This clause doesn’t mean the Republican Party is constitutionally required to win every election!” But, under the present public meaning theory of interpretation, that’s exactly what this clause would mean. The present public meaning of “Republican form of government” is “rule by the GOP.” The alternative meaning of “republican,” a “representative form of government,” is fast becoming an archaism (hard as conservatives try to revive it). Indeed, that form of republicanism is today almost always called “small-r republicanism,” in order to distinguish it from “capital-R Republicanism,” which refers to the political party. Article IV, Section 4 helpfully disambiguates this for us: the Constitution uses the capital R! Under present public meaning theory, this doesn’t appear to be a close question: Republicans must control every state government!

Smith notes a similar problem with the meaning of “domestic violence” in the same clause, and adverts to the surrounding context to show that we should not interpret “domestic violence” according to its most popular modern meaning. I don’t think that defense is available to him for the “Republican form of government” clause. As Smith puts it, the context is “state-level requests for assistance” against “invasion” and “unrest arising from within a state.” There are several political actors in our system who look at the context who would say, “Yep, the Democrats winning the Minnesota state senate is indeed an emergency! They probably did it with help from their invasion of illegals and their same-day voter registration laws! Hey, look! Unrest arising from within a state! Invoke the Clause! Release the kraken!” If the present public meaning theory is true, this would all be legitimate—indeed, constitutionally required!

I currently prefer the Republican Party to the Democratic Party. However, do not think it would be a good thing for the Republican Party to become the sole constitutionally-eligible governing party simply because the meaning of “Republican” has drifted over time.

You will of course respond, as I do, that the Republican Form of Government Clause doesn’t mean that, because the people who wrote it and the People who ratified it meant “Republican” in the sense of representative government, not the Republican Party (which wouldn’t even exist for another seventy years). Well, exactly. That’s why original public meaning is correct and present public meaning is not!

Smith doesn’t directly address this problem. Frederick Schauer mentions it in the article that inspired Smith’s, but, to my understanding, Schauer does not suggest a resolution to it.

These are some of my concerns about the present public meaning theory. I’m not certain they’re correct concerns. The present-public-meaning theory is very new to me, and I am still getting used to the idea. I should probably read both articles more carefully.

However, even if I am correct to be concerned, present public meaning theory is, at least, an actual theoretical alternative to original public meaning theory. It can grow in response to my criticisms. It can refine its arguments, and find ways of dealing with the weak points. Perhaps, someday, a future iteration of this position will be persuasive enough to convince me to abandon originalism. That day seems a long way off, but at least there’s a conversation to be had.

To me, that’s not just a lot more productive than one-sidedly throwing bombs at originalism for even trying to build a theoretical basis for a written rule of law. It’s also a lot more fun.

Paid subscribers: this was supposed to be the start of a Worthy Reads post for April for you guys. It’s been too long since you enjoyed any paid-exclusive content here at De Civ, and I recognize that, and I am working on it. In the meantime, thanks for your support. (Free riders: I love you, too, but you owe the paying subscribers a solid, because they’re the ones who keep me writing.)

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UPDATE: Professor Smith replied to me, and I replied to his reply.

1. There is a vast and deep literature on whether originalism actually, in practice, constrains judges more than its alternatives in general. In my narrow focus on these two passages, I am giving that literature very short shrift.

2. I’m not actually convinced that “twenty dollars” is the term we should be looking at. We’ve been wrenching it out of its context.

In Suits at common law, where the value in controversy shall exceed twenty dollars…

The “value in controversy” is the value at stake in the case. It could be a pile of money that both litigants think they are entitled to, or it could be a house, or it could be something abstract like reputational damages. (This is uncontroversial.)

The language of the Seventh Amendment instructs us to compare that value-in-controversy to the value of twenty dollars. If the value-in-controversy is greater than the value of twenty dollars, the right to a jury trial kicks in. (Still uncontroversial.)

The text plainly demands a comparison of value, not any other attribute of “twenty dollars,” like its physical weight. (Now I’m making my move.) Nobody would read this passage to say, “If the value-in-controversy weighs more than twenty dollars, you get a jury trial.” Nobody would read this passage to say, “If the value-in-controversy is a collection that contains more things than twenty dollars, you get a jury trial,” so that you’d get a jury trial if you sued over 21 M&Ms but not 19 diamonds. The text plainly wants to know only the value of twenty dollars.

So, to resolve the legal question relevant to litigators, we only need to know the original public meaning of “the value of twenty dollars” in 1789. The original public meaning of “twenty dollars” in 1789 remains an interesting academic question, but it is unnecessary to resolve it for Seventh Amendment practice if we can identify its value.

This whole footnote is academic, though, because I think looking for the original meaning of “the value of twenty dollars” leads us to the same place as looking for the original meaning of “twenty dollars”: Article I, Section 8 gives Congress express power to “regulate the value” of money. The value of twenty dollars is therefore whatever Congress says it is.

If we instead insisted that the meaning of “the value of twenty dollars” was fixated based on the actual contemporary value of twenty dollars at the moment Congress proposed the Seventh Amendment, and was thereafter beyond the reach of Congress’s plainly-stated power to regulate the value of twenty dollars, then we would probably have to conclude that “the value of twenty dollars” refers to whatever you could buy with twenty dollars in 1789. We would have to adjust the Seventh Amendment’s “twenty dollars” for inflation, in which case we’d end up with a Seventh Amendment threshold of $600 or so.

3. Green is far from the first to make this argument, but he’s the one Smith cites, and I kinda like the way he draws the distinction for our purposes.

4. Well, I would be a better lawyer, if I were a lawyer at all.

5. Purposivism at least has the decency to pretend it’s applying actual constraints on judicial power, and, to the extent that its practitioners believe that, I respect their legal theory.