I remain unconvinced that distinguishing between objective (public) meaning and subjective meaning is helpful. Nor do I believe that Blackstone's approach to statutory interpretation or John Eastman's suggestions do the trick. All of the conditions in Blackstone and the methods in John's post are themselves subject to interpretation. And, therefore, are subject to the same interpretive quandaries as the original term. Moreover both sets of methods permit (even encourage) "essentially contested" differences. Invoking public meaning seems attractive because it seems to present an independent standard for settling constitutional controversies. But if both parties in a controversy are entitled to invoke diametrically different "public meanings," the effectiveness of this idea as an independent, (dispositive) standard vanishes.
Just what is the public meaning of "equality" today? Can any of us answer this question with strong conviction? Suppose a Martian, Ph.D. traveled to Earth to spy on us. Suppose further his (her or its) superior required a report on the public meaning of "equality" in the United States in the year 2003, what should the reply be? Should the Martian, Ph.D. read the National Review or the Nation? Or both? How does the Martian break a tie if these magazines interpret "equality" differently? A string of additional methods or factors does not assist the Martian here. All additional factors are subject to interpretation as are both of the earlier mentioned magazines in the first place. For that matter, what was the public meaning of equality ("freedom" and so forth) in 1993? I'm afraid the idea of "the public meaning of X" for almost any X, is not as promising as the discussion seems to suggest.
Please understand I'm not denying that we might reasonably argue over the meaning of "equality" (or any other term). But the methods and concepts necessary for doing so, and the difficulties inevitably faced in confidently coming up with a conclusion do not bode well for the use of "the public meaning" in constitutional interpretation, at least not as a descriptive matter. To be able to say with regard to the interpretation of any constitutional provision that X is (or was) the meaning defies (in my view) what is possible in discovering meaning generally.
As journeymen (and women) we do our best--using familiar methods--in struggling to understand one another. In my view, we conclude with only tentative, revisable judgments about what our conversational partner means (and in some case what we ourselves meant). Typically, all we need are tentative, revisable judgments. But when we need more, as in constitutional interpretation, I don't see that anything more is available. Consequently, I would be skeptical about most judgments (especially those involving critical political philosophical concepts) that one is ever justified in saying that X is the original (public) meaning of a constitutional provision. Were we to say "the public meanings" of critical terms instead, I'd be less contrary, but still skeptical. I do not see how such an idea is helpful in resolving constitutional controversies. Unless all the public meanings in a particular case were consistent, which typically they are not, invoking public meaning usually settles nothing.
Bobby Lipkin
Widener University School of Law
Delaware
