Original public meaning

Finally, there is another view that is a potential competitor of inten- tionalism in the interpretation of canonical legal rules. A good bit of what we say about it here has been clearly prefigured or already said in this and the two preceding chapters.

Some theorists suggest that the meaning of a canonical legal text is not the meaning intended by its authors but is rather the meaning that would be attributed to it by (some) members of the public at the time of its enactment - its original public meaning. On one version, this view is really a version of the form of non-algorithmic textualism that employs the construct of the idealized reader. As we argued, the notion of the idealized reader, to the extent the idealized reader would not give canonical legal texts their authorially intended meanings, is to that extent indeterminate.

On another version, this view is really the form of non-algorithmic textualism we called ‘textualism as rule of law-restricted intentional- ism'. That view is just intentionalism with evidence of intention that would not be generally accessible to the public at the time of enact­ment ruled out of bounds (by a legal rule of higher authority than the one being interpreted). That is a cogent notion of legal interpretation; but because it is intentionalist in nature, it is not special to law and legal reasoning.

One statement of original public meaning is that given by Larry Solum, to wit, ‘the meaning that (i) the drafters of the text would have reason­ably expected (ii) the audience to whom the text is addressed (iii) to attribute to the drafters (iv) based on the evidence (public record) that was publicly available at the time the text was promulgated' (Solum 2006, 15). The reference to public availability suggests a concern with secret or inaccessible evidence of authorial intended meaning. But, in our opinion, this is a red herring.

Moreover, given that authors want their audiences to have the uptake the authors intend, authors will be quite cognizant of the circumstances of and evidence available to the audience. And the audience will in turn be striving to understand the authors' intended meaning. The authors and their audience have complementary goals - the authors to convey their intended meaning, the audience to infer it.

For there to be a difference between the original intended meaning and the original public meaning, therefore, it must be because the original public might attribute an intended meaning to the authors that was not the actual intended meaning. The proponent of original public meaning, as opposed to authorially intended meaning, must contend that where the original public is in error, that error should nonetheless be the controlling interpretation.

Schematically, assume the authors' intended meaning is X, but the public misunderstands it to be Y. We would say the meaning is X. The proponent of original public meaning would say it is Y. But why go with Y? The argument cannot be based on ‘fair notice'. We are not dealing with the charge of a crime or some other case in which a reasonably mistaken interpretation might unfairly ensnare someone in unpleasant legal consequences. Those fairness issues can be handled without having the original public's mistaken interpretation be the controlling one.

Moreover, not only does fairness not militate in favor of Y, neither does proper deference to the original public.

We have been assuming that the entire public would have interpreted the authors' intended meaning differently from how those seeking authorially intended meaning would interpret it. But that is hardly conceivable. After all, if those now seeking the authorially intended meaning believe the authors' intended meaning is X, presumably some members of the original public would have done so as well - presumably, the most informed and intelligent members of the origi­nal public.

So assume some members of the original public interpreted the authors to mean X (which is correct), some interpreted them to mean Y, some interpreted them to mean Z, and so on. What is the original public meaning? What the average person would have concluded? But how does one ‘average' people who differ with respect to intelligence, infor­mation, motivation, and so on? What the reasonable person would have concluded? But why is not the reasonable person he who is most informed, intelligent, and so on? Such a person, of course, will be the one who would reach the same conclusion as those seeking the autho- rially intended meaning. And, taking fair notice concerns off the table, why base the meaning on what a less informed, less intelligent member of the public would conclude? We can see no good reason for the pro­ponent of original public meaning to base interpretation on anything other than what the most informed, intelligent member of the public would have concluded was the authors' intended meaning - which will turn out to be the meaning the proponent of authorially intended meaning would give (and which would be the meaning the public was attempting to discern). In short, any plausible version of original public meaning will turn out to be identical to the search for the authorially intended meaning.

We have looked at the major alternatives to commonplace intentional­ist interpretation and found them wanting. They turn out to be either incoherent, normatively disastrous, or merely forms of intentionalism dressed up as something else. The interpreter of canonical legal rules may need to learn any legal rules that constrain his access to evidence of authorial intent (as well as the legal rules discussed in Chapter 3 that constrain the legal authority of the rules' authors); however, the inter­preter need learn no reasoning skill other than the ordinary human one that we practice every day, namely, deciphering one another's intended meaning.