Original public meaning is the bedrock upon which the entire structure of originalism is built. Originalism, now a dominant force in constitutional interpretation, draws its power from this concept. But original public meaning’s effectiveness depends on understanding its true nature. That nature turns on a key issue: whether the public meaning allows for the meaning that those well-versed in law would give to a provision (the legal meaning) or merely the meaning that the ordinary public (the lay meaning) would give to it. This choice greatly influences our ability to uncover a precise and reliable interpretation of the Constitution. It strikes at the heart of how judges are to interpret the document that governs our nation.

　　This distinction between interpreting the Constitution in lay as opposed to legal language carries weighty consequences. Most lay language is vague and imprecise. Legal language is often more exact, like a finely sharpened tool, cutting through ambiguities that might otherwise require us to step outside the original text—a process known as construction—to find answers. Consider the term unusual in the Eighth Amendment’s prohibition on Cruel and Unusual Punishment. If we interpret unusual using a general (nonlegal) dictionary, its meaning is hazy. But if we look to its legal meaning at the time, it aligns with the more precise common law concept of something against long-settled practice.

　　Unfortunately, two misconceptions have clouded this debate. First, many scholars assume that public meaning in original public meaning automatically refers to the understanding of an ordinary person. They take “public” to mean that which is understood by the general public. They thus believe that by its very nature, original public meaning favors lay over legal interpretation. Second, scholars also assume that Justice Antonin Scalia, perhaps the most renowned originalist justice of our time, advocated for a Constitution written in the language of the common man. As we demonstrate in a recent article, however, both of these assumptions are false.

　　The Original Meaning of Original Public Meaning

　　To set the record straight, we show in this article that when the theory of public meaning was originally introduced in the 1980s, it was not meant to pit lay meaning against legal meaning. Rather, it was meant to distinguish expressed meaning from subjective intent. Expressed meaning is the meaning conveyed by the text itself, while subjective intent reflects what the authors personally meant to communicate. While the authors of the Constitution may have intended certain meanings, the public meaning hinges on what a reasonable, informed reader at the time would have understood. A hidden intent, no matter how genuine, does not alter the meaning expressed to the public. This distinction mirrors the difference between textualism, which focuses on the text’s expressed meaning, and intentionalism, which delves into the authors’ hidden intentions.

　　We should embrace an interpretation that allows for both legal and lay meanings rather than one largely restricted to lay language.

　　The expressed meaning is consistent with interpreting the Constitution to have a legal meaning, since the legal meaning is not hidden. Meanings based on legal materials, such as cases and treatises, are publicly available and can be known by a reasonable, informed reader. Thus, it is not surprising that as original public meaning gained traction over time, some of its early adopters began to refine the concept to embrace legal meaning. By the late 1990s and early 2000s, these originalists argued that the public meaning of the constitutional text was, in fact, its legal meaning.

　　It was not until 2008 in a unpublished article followed by a published article in 2009 that law professor Larry Solum introduced a different interpretation of original public meaning, suggesting that it should be understood as the meaning that the lay public would give to language. While Solum is certainly entitled to propose this variation, it is crucial for readers to recognize that his definition was neither the original one nor one that necessarily follows from the concept of public meaning.

　　Justice Scalia’s View

　　Second, there has been a persistent misunderstanding of the view of late Justice Antonin Scalia, the most influential early architect of original public meaning. Some scholars have mistakenly interpreted Scalia as a proponent of the lay meaning version of original public meaning. Our article demonstrates, however, that this is not the case. In his most detailed works, including his 1998 and 2012 books on interpretation, Scalia clearly rejects the lay meaning approach. He explicitly states that constitutional and statutory language often carries a legal meaning. Scalia’s position is unequivocal: “Sometimes context indicates that a technical meaning applies. Where the text is addressing a scientific or technical subject, a specialized meaning is to be expected. And when the law is the subject, ordinary legal meaning is to be expected, which often differs from common meaning.” This statement leaves no room for doubt about his stance.

　　Some have pointed to a single paragraph in Scalia’s majority opinion in District of Columbia v. Heller as evidence supporting the lay meaning view:

　　In interpreting this text, we are guided by the principle that “the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

　　But this isolated instance cannot outweigh the substantial body of evidence indicating Scalia’s commitment to the legal meaning of statutory and constitutional language. Beyond his books, Scalia’s judicial opinions consistently reflect this view. For example, even in Heller, when interpreting the Second Amendment’s prefatory phrase (“A well-regulated militia being necessary to a Free State”) and its operative command (“the right of the people to keep and bear arms shall not be infringed”), Scalia relies on a legal interpretive rule that prevents a preamble from narrowing a clear directive, thereby rejecting the notion that only a militia has the right to bear arms.

　　Moreover, in numerous other places throughout Heller, Scalia follows the legal meaning. In Crawford v. Washington, Scalia interprets the term “confront” in the Confrontation Clause (“in all criminal prosecutions the accused shall enjoy the right to confront the witness against him”) against the backdrop of English common law—an area far beyond the understanding of an ordinary lay reader.

　　In our article, we do not merely argue that Justice Scalia embraced the Constitution’s legal meaning. We also present many kinds of evidence to show that Justice Scalia was right. To determine whether the Constitution was written in legal or lay language, we must examine the document itself. A close inspection reveals that it contains at least 100, and possibly as many as 250, terms with legal meanings. A document written in ordinary language simply would not be saturated with so many legal terms. Furthermore, the Constitution is filled with provisions that presuppose the application of legal interpretive rules—certain clauses are devised specifically to invoke these specialized legal principles. Early jurists and legislators also interpreted the Constitution through the lens of its legal meaning. This body of evidence builds a cumulatively powerful case: the Constitution is written in the language of the law.

　　However, interpreting the Constitution in the language of the law does not mean that every term always receives a legal meaning. The language of the law includes all of ordinary English, plus the legal lexicon. Therefore, it is entirely consistent with this approach to interpret some parts of the Constitution using their lay meanings. When a term has both a legal and lay meaning, the way to resolve the ambiguity is by examining the context, structure, and purpose of the text. On the other hand, those who advocate for a purely lay reading of the Constitution restrict or even prohibit interpreting terms with their legal meanings. The choice, then, is clear: we should embrace an interpretation that allows for both legal and lay meanings rather than one largely restricted to lay language.

　　Nor does interpreting the Constitution undermine its legitimacy. The Constitution gains its force as law because it was ratified by representatives. Representative democracy is used instead of direct democracy because representatives are thought to have knowledge that the public lacks. And these representatives were a sophisticated portion of the public, many of whom were lawyers. The legal nature of the document was thus considered in the deliberations that ratified it. The public too understood the gist of the document, both because large portions overlapped with ordinary language and because lawyers, like those who wrote the Federalist papers, explained many of the nuances.

　　Understanding Scalia’s perspective also sheds light on the approach of today’s originalist justices, who may not always articulate their reasoning with the same nuance as a justice who also wrote legal treatises. Some commentators argue that many of these justices are committed to lay meaning, but we show that the best reading of their opinions suggests a more complex reality. They often start with a presumption in favor of lay meanings but frequently move toward legal meanings when the context demands it. Much like the Bourgeois Gentilhomme who unknowingly spoke prose all his life, many justices apply legal meaning without always making it explicit.

　　Implications

　　Interpreting the Constitution in the language of the law is vital for originalism. The remarkable progress of recent originalist scholarship owes much to its focus on uncovering legal meanings embedded in the Constitution. An approach that views the document primarily or solely through the lens of lay meaning misses the rich, nuanced legal interpretations that the Constitution’s legally sophisticated authors wrote in the document. Moreover, without the precision that legal meaning provides, lay meaning originalism risks leaving the Constitution so vague that it is open to the same criticisms as living constitutionalism. Legal meaning is not a preference: it is a factually based foundation for a more robust, determinate, and principled interpretation of our founding document.

　　Choosing between legal and lay meaning also has implications for the new and increasingly popular method of corpus linguistics in legal interpretation. Imagine corpus linguistics as a vast library, where the meaning of words and phrases is determined by analyzing how they are used across a wide range of texts. The accuracy of this approach hinges on the data sets you choose to explore. If you are searching for the meaning within the language of the law, you will need to comb through legal texts; if you are after a lay meaning, you will turn exclusively to everyday language. The data set you choose can be the difference between uncovering a precise legal distinction or missing it entirely.

　　Unfortunately, the progress of originalism has been slowed by two significant misunderstandings that have crept into both judging and scholarship. The first, ironically, involves a misreading of the original meaning of original public meaning itself. The second is a misinterpretation of the writings of the great originalist, Justice Scalia. These errors have led to an undue reluctance by some to embrace legal meaning in originalist analysis. By clearing up these misconceptions, we aim to steer originalism back onto a clearer, even more successful path.