A response to Michael L. Smith regarding a comment by Lawrence B. Solum.
Congratulations! You got noticed and responded to by Smith! His critiques largely coincided with mine, which spares me many paragraphs here. But there's an important place where I diverge from both of you: the notion that the most powerful interpretive theory must stand alone.
This isn't the fallacy of the false middle, or a "both sides" approach. Nor is it relativism; some theories deserve priority over others, and some deserve no place in our judiciary at all. Instead, if the point of an interpretive theory is to narrow down interpretations, and to do so with a reliable method rather than personal beliefs, then the application of multiple lenses will narrow down our options more than does one.
Something that originalists and all other schools currently perceive in each other, in America but not everywhere, is the imposition of personal beliefs on the law. You believe this so strongly about your opponents that, in a prior conversation where I referenced anything other than original public meanings (which is not just one option), you responded that you wouldn't support a Constitutional amendment to enable judges to impose personal beliefs. Who suggested such a thing? Meanwhile, the smokescreen of historical objectivity over the current Court's decisions seems so thin, and so straightforwardly absurd to everyone not in agreement, that we have difficulty believing that conservatives believe any of it and aren't snickering into their sleeves.
Given this reality, a Court that rigorously applies more than one interpretive rubric and comes out with a most supported answer might be one of the only ways to save the legitimacy of the institution. It is also just plain more responsible textual interpretation. Texts by nature do not loan themselves to claims of "the correct" answer; even in the sciences, we describe claims as more supported, less supported, or falsified, not as correct or true. Texts loan themselves to more informed interpretations.
Below are a set of connected rubrics that I would propose for more informed interpretation of law.
Established meanings as of most recent amendment or re-ratifications
Textual whole purposivism
Original public meanings
Contemporary public meanings
Established meanings as of re-ratification or most recent amendment:
Our federal Constitution lacks a re-ratification process, but such a process is not trivial even for states who re-ratify the same text over and over. The public meanings of the document officially become those of its most recent ratifiers.
I would argue that the history of amendments, or the lack of amendments, serves as our best equivalent for the United States Constitution. Any amendment to a text does not merely add new words in isolation; it alters and updates the entire text. If the Supreme Court has established an interpretation of a passage of the Constitution, and an amendment has passed that changed other language, but not that language, then the public has shown it had the capacity to change this text and its interpretation, but did not. This applies especially to rights or principles that the Supreme Court has upheld multiple times, when multiple amendments have passed throughout.
Public meanings carry the weight of prior interpretation, validated (or not) by the amendment process.
This is part of why no mischief with "Republican government" will go anywhere. Contemporary public meanings, or most recently affirmed meanings, as I prefer, come with education in established language. As you say, every class on the Constitution contains an explanation of this language in context.
Public meaning as of most recent ratification or amendment has the most weight, to my thinking, for exactly the reasons you provide for original public meaning, *and also* for the reasons for contemporary public meaning.
Textual whole purposivism:
A poor set of instructions for a German clock I once assembled contained the simple sentence, "Now break the pendulum." I did not obey those words as written. Instead, I recognized that the text aimed to instruct how to build a clock, and any interpretation of words contrary to that purpose could not be correct. Intention does not matter here, nor do my beliefs as a reader other than my ability to grasp the clear public meaning of the overall document.
This is quite distinct from contextual purposivism, which asks about the purpose of an individual clause in historical context and how this purpose applies in our new contexts. Instead, it is the application of the public purpose of the entire document onto the interpretation of specific clauses within the document. This principle applies especially to too-clever attempts to bring down some large piece of legislation through one awkward turn of phrase. Don't break the pendulum.
Original public meanings:
You've voiced many good reasons that original public meanings have value. I endorse many of them. You've also been confronted with many arguments for the limitations of the approach. I think that you downplay them, but you nevertheless do recognize that the theory isn't perfect. Even if it is least-bad (over which Americans very much disagree), there is no reason it needs to stand alone. Or, no *good* reason. We have currently polarized around interpretive schemes that more often favor our perspectives. These are bad reasons.
Contemporary public meanings:
These apply especially if no rulings have established prior meanings subject to affirmation through re-ratification. "Twenty dollars" is a good example.
This is the purposivism you rail against, and I'll agree with you that it is quite dangerous if allowed to stand alone. If we see the Founders as having intended to ensure the continuation of a White supremacist oligarchy, as the Left surely does, then a sincere purposivism would be the worst possible rubric in isolation. However, when tempered through the other rubrics first, purposivism can help avoid stupidity when a public meaning could go in more than one direction. Scalia had a whole list of "Constitutional but stupid." If we can prevent willful stupidity by studying what clauses are historically meant to accomplish, we do ourselves a favor.
There are many more possible rubrics; I'm not aware of any others that I'd want included in legal interpretation, but I could always be surprised or learn more. But the shift I encourage--for sake of more just and responsible reading, and also for the integrity of the Republic--is narrowing meanings through the application of and dialogue between multiple rubrics. Attempting to assert the sole supremacy of one at this point is tyranny of the majority, tyranny of the minority, or just plain tyranny.