Greenberg, Mark & Litman, Harry. "The Meaning of Original Meaning,"
86 Georgetown Law Journal 569-619 (1998).

This article really takes on two tasks. First, there is a critical review of Antonin Scalia’s writings on the subject of originalism in constitutional adjudication, both in his court opinions (Rutan v. Republican Party of Illinois, Romer v. Evans, V.M.I. v. U.S., and Board of County Commissioners v. Umbehr), and in his recent book, A Matter of Interpretation: Federal Courts and the Law. Second, the authors propose their own account of the proper way to construe originalist jurisprudence, in contrast with Scalia’s approach.

Scalia argues that there are two basic roads to take in matters of judicial orientation: the common law approach, whereby result-oriented judges ask what the most desirable resolution is for a particular case, and then devise rulings to finesse troublesome legal precedents (Ronald Dworkin’s Judge Hercules comes to mind); and Scalia’s originalist approach, which constrains judges to make decisions based on their understanding of well-established practices at the time of passage of the relevant statute, constitutional text, or constitutional amendment. Practices, in the relevant sense, distinguish Scalia’s originalism from original intent doctrine (intent of the drafters of the text? of the legislators who ratified it? of the citizens who voted those legislators into office?), which he regards as untenable. The authors’ positive response to Scalia turns on the suggestion that Scalia has committed the fallacy of false bifurcation. In addition to the two options Scalia sketches, there is a third: the meaning of a legal term or phrase can be understood not just in terms of its referent, the nonlinguistic facts about the objects or activities to which the term applies, but alternatively in terms of its sense, roughly what a dictionary definition attempts to convey. Originalism can, in Greenberg’s and Litman’s view, be more sympathetically understood in terms of this latter conception of textual meaning. (Scalia’s originalism focuses on historically-situated reference rather than more atemporal sense.)

This article is at its best in the authors’ summary and critique of Scalia’s views, which is very effective, and a topic which has not yet drawn sufficient attention in the literature. The authors’ own account of originalism, however, is far less compelling. The examples tend to be a bit too clear to be apposite. Thus, Greenberg and Litman offer a contagious disease statute as an illustration of just how strong the contrast can be between ‘original substantive views’ of the referent of a term and ‘strict meaning’ (sense), to the detriment of the substantive view analysis of meaning. (What actually counts as ‘contagious’ changes over time, with the evolution of medical knowledge.) The problem with the example, of course, is that the contrast is not usually likely to be nearly that straightforward. This is especially the case when politically or morally loaded terms are at issue in constitutional adjudication. The authors are far too confident about the likelihood that there is a more or less fixed meaning for a word like ‘cruel’ as used in the Eighth Amendment, that there is no imaginary cruel* of 1789, or that we needn’t rely on some historical excavation about the original substantive views to sort this out.