Finding Original Public Meaning

• Publication year: 2021

Finding Original Public Meaning

James Macleod
Brooklyn Law School, james.macleod@brooklaw.edu

Finding Original Public Meaning

Cover Page Footnote

Assistant Professor of Law, Brooklyn Law School. For helpful feedback, thank you to Mitch Berman, Anya Bernstein, Jessica Bulman-Pozen, Guy Uriel-Charles, Anuj Desai, Mihailis Diamantis, Benjamin Eidelson, William Eskridge, Ellen Katz, Josh Knobe, Anita Krishnakumar, Guha Krishnamurthi, Brian Leiter, Kate Levine, David Noll, Samuel Rickless, Scott Shapiro, Jocelyn Simonson, Brian Slocum, Lawrence Solan, Roseanna Sommers, Glen Staszewski, Kevin Tobia, Maggie Wittlin, and participants in the University of Chicago Law School's New Frontiers in Experimental Jurisprudence Conference, Iowa Law School's Experimental Jurisprudence Seminar, the Michigan Law School Junior Scholars Conference, the Yale Law School Legislation Roundtable, the AALS New Voices in Legislation Panel, the Richmond Law School Junior Faculty Forum, and the SEALS Annual Call-for-Papers Award Panel. For excellent editing, I thank the Georgia Law Review. The Brooklyn Law School Faculty Fund provided financial support.

FINDING ORIGINAL PUBLIC MEANING

James A. Macleod^*

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Textualists seek to interpret statutes consistent with their "original public meaning" (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute's terms at the time of their enactment? But as the Supreme Court's decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn't preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissents vehemently disagreed over the statute's bar on discrimination "because of sex"—each side claiming that OPM clearly supported its interpretation. So who, if anyone, was right? And how can textualists' supposedly commonsense OPM inquiry yield such divergent conclusions?

This Article introduces a new "applied-meaning-experiment" method to answer those questions and develop the theory of textualism. The method asks ordinary readers to apply the relevant statutory language in context, under experimental conditions that minimize the effect of potential biases or differences between enactment-era and present-day usage. For Bostock, the applied-meaning-experiment method reveals that the majority was probably right: textualists' "ordinary reader" at the time of Title VII's enactment would most likely have understood it to bar LGBT discrimination. The insights from

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the applied-meaning-experiment method, however, extend far beyond the controversy in Bostock. In other contexts where textualists disagree over OPM, the method sheds light on how ordinary readers would have understood statutory terms at the time they were enacted.

More importantly, the method helps diagnose why textualists disagree about OPM in a given case. Textualists might lack probative evidence of OPM, but they might also implicitly disagree about what they're looking for. Specifically, inquiry into actual reader understanding highlights two choices textualists inevitably make when determining a given term or phrase's OPM: (1) the type of question whose answer would reveal the reader's relevant "understanding," and (2) the types of extratextual information that the reader would treat as relevant to answering it. To the extent that textualists have considered either question, they have done so inconsistently, without realizing what they are doing. By confronting each choice directly, the applied-meaning-experiment method helps to build out the theory of textualism in a way that's needed for textualism to be capable—at least in theory—of delivering on its promise of judicial restraint.

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Table of Contents

I. Introduction........................................................................4

II. "Textualism's Moment of Truth"...................................17

III. Finding Original Public Meaning................................22

A. TRADITIONAL EVIDENCE.............................................23
B. BETTER EVIDENCE......................................................28

1. The Merits of the Applied-Meaning-Experiment Method...............................................................28
2. A Demonstration ................................................. 31

a. Study 1: Sexual-Orientation Discrimination (Bostock/Zarda) ............................................. 32
b. Study 2: Transgender Discrimination (Harris)..........................................................38
c. Study 3: Gender-Stereotype Discrimination (Price Waterhouse)......................................... 40
d. Study 4: Testing a Motivated-Blaming Theory (Bostock/Zarda with Moral Valence Flipped) ........................................................................42

3. Summary of Study Design, Results, and Implications for Bostock ................................... 45
4. Objections and Responses................................... 51

a. Interpreter Bias.............................................51
b. Linguistic Drift..............................................53
c. Surrounding Text..........................................55
d. How Clear is "Clear"?...................................58

IV. Textualism's Unasked Questions.................................60

A. WHAT TYPE OF QUESTION REVEALS RELEVANT "UNDERSTANDING"?...................................................62
B. WHAT TYPES OF EXTRATEXTUAL INFORMATION ARE RELEVANT?................................................................72

V. Conclusion........................................................................78

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I. Introduction

When textualist judges interpret a statute, they place great weight on the "ordinary," "commonsense," "everyday" meaning of its words at the time they were enacted, i.e., their "original public meaning" (OPM).¹ To find OPM, they ask how ordinary readers

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would have understood the relevant language.² Textualists emphasize that this inquiry is factual and empirical, not normative.³ And they often give it dispositive effect: When ordinary reader understanding accords with only one side's interpretation—

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as, for textualists, it usually does⁴ —that side's interpretation prevails, full stop.⁵ As Amy Coney Barrett recently explained, textualists thus act "as agents of the people," faithfully interpreting the words at issue "the way their principal—the people—would understand them."⁶

By marrying this "commonsense,"⁷ populist orientation⁸ with the promise of a "value-neutral," "objective," "empirical" "science" of interpretation,⁹ textualism has had great success appealing to the

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public and the judiciary alike.¹⁰ The risk is that it obscures from the public—and perhaps from the judiciary itself—the unstated assumptions and intuitions that are doing much of the work. In cases of disagreement over OPM, this risk is often realized in the form of accusations of bad faith.¹¹ With textualism ascendant on the Supreme Court and throughout the judiciary,¹² the stakes of finding OPM¹³ have never been higher.¹⁴

The Court's 2020 decision in Bostock v. Clayton County¹⁵ provides a useful illustration. The case concerned whether sexual-orientation and transgender discrimination are prohibited under Title VII of the Civil Rights Act of 1964.¹⁶ Title VII's terms prohibit an employer from discriminating against an employee "because of" the employee's "sex" (and where the employee's "sex" was a "motivating factor").¹⁷ The Justices all agreed that the "ordinary public

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meaning" of the statute's terms was dispositive.¹⁸ To find it, they consulted popular dictionary definitions,¹⁹ examples from everyday linguistic usage,²⁰ corpus linguistic analysis,²¹ and even the imaginary results "[i]f every single living American had been surveyed in 1964" about the meaning of the statute's language.²²

If the method was familiar, so too was the result: vehement dissensus.²³ Justice Gorsuch, writing for the Court, sided with the employees' interpretation of Title VII, holding that the statutory prohibition clearly encompasses sexual-orientation and transgender discrimination.²⁴ "[N]o ambiguity exists," Justice Gorsuch emphasized, "about how Title VII's terms apply to the facts before us."²⁵ In dissent, Justice Alito, joined by Justice Thomas, claimed that "Title VII's plain text" "indisputably" favors the employers' contrary interpretation.²⁶ As to the majority's contentions, "[a] more brazen abuse of our authority to interpret statutes is hard to recall."²⁷ In a separate dissent, Justice Kavanaugh wrote that "[o]n occasion, it can be difficult for judges to assess ordinary meaning. Not here."²⁸ The majority, by willfully neglecting the text's obvious ordinary meaning, had "unilaterally rewritten American vocabulary and American Law."²⁹

So, which side was right? And why does textualism's supposedly commonsense OPM inquiry—in Bostock and the many other cases

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like it—yield such starkly divergent conclusions?³⁰ This Article introduces a new "applied-meaning-experiment" method to answer those questions and develop the theory of textualism.³¹ The keys to the method are as follows: ask ordinary readers to apply disputed statutory language in context, under experimental conditions that minimize potential biases or differences between enactment-era and present-day usage.³²

Using Bostock as a demonstration, this Article reports a set of experimental survey studies carried out on a nationally representative sample of ordinary Americans prior to the issuance of the Supreme Court's opinion. The studies use the applied-meaning-experiment method to test the OPM of Title VII's disputed language in the contexts of sexual-orientation discrimination, transgender discrimination, and more "traditional" gender discrimination claims.³³ Various aspects of the experimental design

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helped to root out any post-enactment...