Originalism and the Federalist Society
On Saturday, I was at the Federalist Society meetings in Washington, DC, for a lunch-time debate on my new book, Radicals in Robes (inflammatorily and probably unfortunately named, I know). The specific topic was whether originalists are indeed "radicals"; Charles Cooper, a Washington lawyer, spoke in defense of originalism. He and others made a number of good points, of course, but there was a persistent claim that seemed puzzling. The claim was this: Interpretation just IS a matter of attempting to elicit the speaker's intention. Hence originalism, understood as a search for the original intent, follows from the very nature of interpretation.
This claim seemed puzzling for two reasons. First, the most prominent originalists, including Justice Scalia, do not focus on the "speaker's intention"; they focus on the original public meaning. The difference is important, because those who focus on the original public meaning do not need to ask questions about psychology or subjective understandings.
Second, and more fundamentally, there is nothing that interpretation just IS. In interpreting the statements of our friends, of course, we probably do best to try to understand their intentions. But in law, interpretation can be more than one thing. In contract law, we might be concerned with original meaning (though we aren't always concerned with that); in statutory interpretation, we might be concerned with current rather than original meaning (as we sometimes are); in constitutional law, it's a question whether or not we should be concerned with original meaning. Justice Scalia, for example, argues that originalism is the best approach to constitutional interpretation (in a nice piece in the U. Cin. L. Rev., called Originalism: The Lesser Evil), without arguing that interpretation just IS anything at all.
In my view, originalism is not the best approach to constitutional interpretation, among other things because it would so greatly unsettle both our rights and our institutions (hence it would be radical). But that point can be debated. What seems hard to defend is the idea, apparently widespread, that interpretation just IS a search for original intention, or original meaning.