Wittgenstein’s Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism

Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia’s death has created. “Public meaning” originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these “New Originalists” have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested—that is, we often do not seek semantic or legal agreement—makes particular linguistic indeterminacies highly problematic for approaches grounded in historical public meaning.

Here I highlight two underappreciated sources of such indeterminacy: intentional contemporary ambiguity and incidental evolutionary vagueness. Neither of these indeterminacies are susceptible to the New Originalist method, and, when added to the well-known problem of intentional vagueness, these issues leave public meaning originalism incapable of constraining judges in many of our most controversial cases.