Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions

The Freedom of Information Act provides the public with a statutory right to access troves of government information with nine limited exemptions. Two of those exemptions—Exemption 6 and Exemption 7(C)—protect the personal privacy of people mentioned within the government’s files, allowing the government to withhold personally identifiable information if disclosure would cause an “unwarranted” invasion of privacy. Under the Supreme Court’s precedent, courts must conduct a balancing test to determine whether disclosure is unwarranted, weighing the privacy interests of the individuals mentioned in the requested documents against the public’s interest in disclosure. The Supreme Court has clarified that disclosure can only serve the public interest if disclosure will reveal something about the government’s actions, thus allowing the public to oversee the government’s performance.

The Supreme Court has acknowledged that it has left a critical aspect of the balancing test undefined, however. It has never explicitly decided whether disclosure must directly and immediately reveal something about the government’s conduct, or whether the public interest can be served derivatively by using the requested information to uncover additional information outside of the requested documents that reveals the government’s actions.

This Note argues that the Supreme Court actually has answered this question and that courts must consider derivative benefits as part of the public interest. The Supreme Court has repeatedly, though tacitly, considered indirect and derivative harms to personal privacy. After identifying the Court’s tacit pattern, this Note argues that the statute’s language and the Court’s own logic require derivative benefits to receive the same treatment as derivative harms. Finally, this Note examines how this problem has been dealt with by the federal circuits and identifies the fault lines along which the circuits are beginning to split.

Introduction

Even the most popular federal agency in the country1.Lydia Saad, Postal Service Still Americans’ Favorite Federal Agency, Gallup (May 13, 2019), https://news.gallup.com/poll/257510/postal-service-americans-favorite-federal-agency.aspx [https://perma.cc/UL33-X7N7].Show More is not without its controversies. When President Trump named Louis DeJoy Postmaster General, Democrats quickly raised objections about his fitness for the office, based on financial conflicts of interest and an alleged history of illegal political contributions.2.Alison Durkee, Postmaster General Louis DeJoy Should Resign Over ‘Obvious Financial Conflicts of Interest,’ Experts Testify, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/alisondurkee/2020/09/14/postmaster-general-louis-dejoy-should-resign-over-obvious-financial-conflicts-of-interest-experts-testify/?sh=7acc7503147c [https://perma.cc/D9ZC-X7DF].Show More In a hearing before a House Oversight subcommittee, for instance, experts testified that DeJoy held investments worth tens of millions of dollars in private contractors working with the Postal Service, and other witnesses testified that as a private businessman DeJoy had pressured his employees to donate to certain political candidates and then illegally reimbursed them through company bonuses.3.Id.Show More

Citizens for Responsibility & Ethics in Washington (“CREW”), a nonpartisan nonprofit dedicated to government accountability, 4.About CREW, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/ [https://perma.cc/K4YX-W9ZH] (last visited Apr. 14, 2021).Show More decided to investigate DeJoy’s conflicts of interest.5.See E-mail from Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., to USPS FOIA Officer, Re: Freedom of Information Act Request (Aug. 11, 2020), https://www.citizensforethics.org/wp-content/uploads/legacy/2020/08/2020.08.11-Louis-DeJoy-USPS-FOIA-final.pdf [https://perma.cc/88VT-BTNH].Show More CREW filed a request with the Postal Service under the Freedom of Information Act (“FOIA”), seeking both the agency’s records regarding financial interests from which DeJoy was obligated to divest and records of any communications between DeJoy and the USPS regarding certain stock holdings of his.6.Id.Show More

The Postal Service denied the request because it determined that disclosure would not be in the public interest.7.Nikhel Sus (@NikhelSus), Twitter (Sept. 9, 2020, 12:38 PM), https://twitter.com/NikhelSus/status/1303734508018110464 [https://perma.cc/Q2UD-2MFD]; Letter from Jessica Y. Brewster-Johnson, Senior Ethics Couns., USPS, to Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., Re: FOIA Case No. 2020-FPRO-01619 (Sept. 9, 2020) (on file with author). Nikhel Sus serves as CREW’s Senior Counsel over Complaints & Litigation. Our Team, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/our-team/ [https://perma.cc/BSH8-KUCN] (last visited Apr. 4, 2021). Many thanks to Nikhel Sus for providing the complete text of the Postal Service’s denial of the FOIA request.Show More DeJoy, the agency explained, had a personal privacy interest in his financial transactions, bringing the requested records within the scope of FOIA’s Exemption 6. Furthermore, the denial said, CREW “did not provide any information about how release of this record would contribute to the public’s understanding of the operations or activities of the Postal Service.”8.Brewster-Johnson, supra note 7.Show More CREW has since filed suit to compel USPS to disclose the records.9.See CREW Sues USPS on Louis DeJoy Conflicts, Citizens for Resp. & Ethics in Wash. (Oct. 13, 2020), https://www.citizensforethics.org/legal-action/lawsuits/usps-louis-dejoy-conflicts/ [https://perma.cc/M5AT-85E3].Show More

The Postal Service’s explanation defies common sense. How can the public not have an interest in the head of a federal agency’s potential conflicts of interest? Why did CREW have to justify its request with any public interest, much less one that would “contribute to the public’s understanding of the operations” of the Postal Service? And how can CREW show such an interest in order to justify a request? Those are the questions this Note seeks to answer.

The Freedom of Information Act grants the public a judicially enforceable right to access information gathered and stored by the executive branch of the federal government, with nine limited exceptions.10 10.5 U.S.C. § 552(b)(1)–(9).Show More Two of those exceptions—Exemption 6 and Exemption 7(C)—revolve around personal privacy and permit the government to withhold personally identifiable information from certain types of records if disclosure of those records would constitute “an unwarranted invasion of personal privacy.”11 11.Id. § 552(b)(6), (b)(7)(C).Show More The Supreme Court has found that this requires courts to determine whether to disclose or withhold records based on a balancing test between the public interest in disclosure and the privacy interests of the individuals identified in the records.12 12.See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994).Show More

However, in practice, the Supreme Court’s balancing test is weighted against disclosure. The Supreme Court has gradually expanded the scope of the privacy interests protected by the personal privacy exemptions while narrowing what weighs in favor of the public interest. Under the Supreme Court’s current interpretation, often called the “core purpose doctrine,” there is no public interest in disclosure unless disclosure would shed light on the government’s conduct and activities.13 13.U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773–75 (1989).Show More This narrow conception of the public interest is a fixture of the FOIA landscape, which raises the question of how best to assert a cognizable public interest.14 14.The core purpose doctrine has drawn its fair share of critics, but the Supreme Court shows no signs of revising it. See, e.g., Michael Hoefges, Martin E. Halstuk & Bill F. Chamberlin, Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard in Access to Personally-Identifiable Information in Government Records, 12 Wm. & Mary Bill Rts.J. 1, 8–9 (2003); Christopher P. Beall, The Exaltation of Privacy Doctrines Over Public Information Law, 45 Duke L.J. 1249, 1251–52 (1996); Martin E. Halstuk, When Secrecy Trumps Transparency: Why the Open Government Act of 2007 Falls Short, 16 CommLaw Conspectus 427, 428–29 (2008) [hereinafter Halstuk, Secrecy Trumps Transparency].Show More

One central ambiguity remains in the balancing test under the core purpose doctrine: must disclosure of the requested information directly shed light on the government’s conduct, or may it shed light indirectly after a series of intervening causal steps? The Supreme Court has acknowledged, but not answered, the question of what it calls “derivative uses.”15 15.U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991).Show More The U.S. Court of Appeals for the Second Circuit has described derivative use as the idea “that the public interest can be read more broadly to include the ability to use redacted information to obtain additional as yet undiscovered information outside the government files.”16 16.Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 290 (2d Cir. 2009) (citing Ray, 502 U.S. at 178).Show More For instance, to return to the CREW example, one argument for disclosure based on derivative benefits would be that, while the requested information about DeJoy would not directly show how the USPS was performing its duties, disclosure would indirectly allow the public to better oversee the USPS by further investigating the relationship between the agency’s actions and the Postmaster General’s own financial interests. The idea of derivative benefits recognizes the reality that the personally identifiable information protected by the privacy exemptions will rarely, by itself and directly, give the public a better understanding of government decision making. Nevertheless, derivative benefits can frequently add to the public’s capacity to monitor government performance when combined with other available information or when used for further investigation to uncover new information.

This Note explores the Supreme Court’s interpretation of the personal privacy exemptions and concludes that courts must consider derivative uses when conducting the balancing test. In fact, there are two types of derivative uses, and both must be considered. The first type, derivative benefits, is when the derivative use of requested information advances the public interest. Conversely, derivative harms occur when someone uses the requested information after its disclosure in a way that further invades the privacy of the individuals identified in the records. These two types of derivative use weigh in favor of disclosure and nondisclosure, respectively.

As this Note demonstrates, the Supreme Court has repeatedly factored in derivative harms as justification for nondisclosure without ever explicitly recognizing that it has done so. At the same time, however, the Court has failed to recognize the corresponding value of derivative benefits, though the caselaw implies that there is an appropriate role for derivative benefits in limited circumstances. Because FOIA embodies a pro-disclosure policy, and because there is no principled reason to consider one type of derivative use without the other, courts must consider derivative benefits, just as they follow the Supreme Court’s lead in considering derivative harms.

This Note makes three main contributions to this field. First, while this is not the first piece to advocate for the consideration of derivative uses, it is the first to do so for a narrow conception of derivative uses that is consistent with current Supreme Court doctrine. Broader versions of derivative use, as others have championed, would unrealistically require either the Court or Congress to overrule the core purpose doctrine. Second, this Note brings existing literature up to date by analyzing the impact of the Supreme Court’s latest disclosure case under the personal privacy exemptions. No other article has touched on this topic in any depth for roughly two decades. Finally, this Note is the first to discuss in any detail the treatment of derivative uses by the lower courts. This is critical to understanding the direction the doctrine is developing and is all the more pressing because this issue has the potential to cause a circuit split.

Part I of this Note provides a brief look at the history of FOIA and explains how the Supreme Court interprets the two personal privacy exemptions. Part II examines United States Department of State v. Ray,17 17.502 U.S. 164 (1991).Show More the one case in which the Supreme Court discussed derivative uses directly, while Part III analyzes the implications of the Court’s caselaw after Ray. Part IV lays out how and why courts should consider derivative benefits, and, finally, Part V analyzes the most important derivative use cases at the circuit level and predicts where the circuits are likely to split in the future.

  1. * J.D., University of Virginia School of Law, 2022. I am grateful to Professor Sarah Stewart Ware, who patiently supervised and guided this Note, and to the members of the Virginia Law Review who so diligently edited and improved it. All errors are mine alone.
  2. Lydia Saad, Postal Service Still Americans’ Favorite Federal Agency, Gallup (May 13, 2019), https://news.gallup.com/poll/257510/postal-service-americans-favorite-federal-agency.aspx [https://perma.cc/UL33-X7N7].
  3. Alison Durkee, Postmaster General Louis DeJoy Should Resign Over ‘Obvious Financial Conflicts of Interest,’ Experts Testify, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/alisondurkee/2020/09/14/postmaster-general-louis-dejoy-should-resign-over-obvious-financial-conflicts-of-interest-experts-testify/?sh=7acc7503147c [https://perma.cc/D9ZC-X7DF].
  4. Id.
  5. About CREW, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/ [https://perma.cc/K4YX-W9ZH] (last visited Apr. 14, 2021).
  6. See E-mail from Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., to USPS FOIA Officer, Re: Freedom of Information Act Request (Aug. 11, 2020), https://www.citizensforethics.org/wp-content/uploads/legacy/2020/08/2020.08.11-Louis-DeJoy-USPS-FOIA-final.pdf [https://perma.cc/88VT-BTNH].
  7. Id.
  8. Nikhel Sus (@NikhelSus), Twitter (Sept. 9, 2020, 12:38 PM), https://twitter.com/NikhelSus/status/1303734508018110464 [https://perma.cc/Q2UD-2MFD]; Letter from Jessica Y. Brewster-Johnson, Senior Ethics Couns., USPS, to Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., Re: FOIA Case No. 2020-FPRO-01619 (Sept. 9, 2020) (on file with author). Nikhel Sus serves as CREW’s Senior Counsel over Complaints & Litigation. Our Team, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/our-team/ [https://perma.cc/BSH8-KUCN] (last visited Apr. 4, 2021). Many thanks to Nikhel Sus for providing the complete text of the Postal Service’s denial of the FOIA request.
  9. Brewster-Johnson, supra note 7.
  10. See CREW Sues USPS on Louis DeJoy Conflicts, Citizens for Resp. & Ethics in Wash. (Oct. 13, 2020), https://www.citizensforethics.org/legal-action/lawsuits/usps-louis-dejoy-conflicts/ [https://perma.cc/M5AT-85E3].
  11. 5 U.S.C. § 552(b)(1)–(9).
  12. Id. § 552(b)(6), (b)(7)(C).
  13. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994).
  14. U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773–75 (1989).
  15. The core purpose doctrine has drawn its fair share of critics, but the Supreme Court shows no signs of revising it. See, e.g., Michael Hoefges, Martin E. Halstuk & Bill F. Chamberlin, Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard in Access to Personally-Identifiable Information in Government Records, 12 Wm. & Mary Bill Rts. J. 1, 8–9 (2003); Christopher P. Beall, The Exaltation of Privacy Doctrines Over Public Information Law, 45 Duke L.J. 1249, 1251–52 (1996); Martin E. Halstuk, When Secrecy Trumps Transparency: Why the Open Government Act of 2007 Falls Short, 16 CommLaw Conspectus 427, 428–29 (2008) [hereinafter Halstuk, Secrecy Trumps Transparency].
  16. U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991).
  17. Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 290 (2d Cir. 2009) (citing Ray, 502 U.S. at 178).
  18. 502 U.S. 164 (1991).
  19. Hoefges et al., supra note 14, at 9–11 (quoting 5 U.S.C. § 552(f)). The “right” to access information gathered and held by the government is purely statutory. The Supreme Court has rejected the idea that citizens have any legally enforceable right under the Constitution to access government information. Barry Sullivan, FOIA and the First Amendment: Representative Democracy and the People’s Elusive “Right to Know,” 72 Md. L. Rev. 1, 14 (2012).
  20. See Hoefges et al., supra note 14, at 9 n.42.
  21. John C. Brinkerhoff, Jr., FOIA’s Common Law, 36 Yale J. on Regul. 575, 594 (2019) (quoting 5 U.S.C. § 1002 (repealed 1966)); see also Halstuk, Secrecy Trumps Transparency, supra note 14, at 434–35. The government used the “properly and directly concerned” requirement in particular to withhold information. Id. at 434. If the requested information did not pertain to the requestor himself, the government denied disclosure. This effectively excluded all third parties such as journalists and attorneys. Id.
  22. Brinkerhoff, supra note 20, at 594. One famous example, which demonstrates how toothless the disclosure requirements of the APA were, involved the government finding good cause to withhold the contents of telephone books. Id. at 594 n.141 (quoting James E. Hakes, Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame L. Rev. 417, 436 (1965)).
  23. See EPA v. Mink, 410 U.S. 73, 79 (1973).
  24. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir. 1974)).
  25. See Martin E. Halstuk & Charles N. Davis, The Public Interest Be Damned: Lower Court Treatment of the Reporters Committee “Central Purpose” Reformulation, 54 Admin. L. Rev. 983, 991 (2002).
  26. S. Rep. No. 88-1219, at 8 (1964).
  27. Hoefges et al., supra note 14, at 9–10.
  28. Id. Over the ensuing decades, Congress has amended FOIA a number of times in order to generate more disclosure and twice has done so expressly to overrule the Supreme Court. However, these amendments have not significantly dented the advantage that the government enjoys in court. Brinkerhoff, supra note 20, at 610 (citing Laurence Tai, Fast Fixes for FOIA, 52 Harv. J. on Legis. 455, 456–57 (2015)); see also Halstuk, Secrecy Trumps Transparency, supra note 14, at 427–28 (noting that the OPEN Governance Act of 2007, which amended FOIA, improved access to government-held information in a number of ways but still failed to “address systemic obstacles to a transparent government”).
  29. 5 U.S.C. § 552(a)(3)(A)–(B); Hoefges et al., supra note 14, at 10.
  30. 5 U.S.C. § 552(a)(4)(B).
  31. See Brinkerhoff, supra note 20, at 594. Brinkerhoff argues persuasively that a central reason for FOIA’s failure to promote disclosure to the extent Congress intended is its connection to the APA. The judiciary has interpreted FOIA using an approach similar to administrative common law. This approach runs contrary to the statutory text and employs doctrines that empower the executive, leading to a weakening of FOIA’s presumption in favor of disclosure and giving the government a marked advantage in litigation. This Note does not touch on FOIA’s background of administrative law. Rather, it examines one way in which the Supreme Court has unduly narrowed the two personal privacy exemptions. Still, it is worth bearing in mind that there are larger nondisclosure forces at work that apply to all of FOIA and not simply the two exemptions discussed here.
  32. 5 U.S.C. § 552(b)(1)–(9).
  33. Id. § 552(b)(6).
  34. Id. § 552(b)(7)(C).
  35. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 496–97 n.6 (1994) (noting that the differences between the two exemptions are “of little import” because they differ only in “the magnitude of the public interest that is required” to justify disclosure).
  36. See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989).
  37. 5 U.S.C. § 552(b)(6).
  38. Id. § 552(b)(7)(C).
  39. Id. § 552(b)(6), (b)(7)(C).
  40. See Reps. Comm., 489 U.S. at 756. Congress’ initial draft of Exemption 7(C) contained the same language and therefore offered the same level of privacy protection as Exemption 6, but President Gerald Ford insisted on more stringent protections in return for his support for the bill. Hoefges et al., supra note 14, at 13 n.67 (citing 120 Cong. Rec. 17,033 (1974); H.R. Rep. No. 93-1380, at 4 (1974) (Conf. Rep.)).
  41. See Hoefges et al., supra note 14, at 11–12 (citing H.R. Rep. No. 89-1497, at 11 (1966)).
  42. H.R. Rep. No. 89-1497, at 11 (1966).
  43. See U.S. Dep’t of Just., Department of Justice Guide to the Freedom of Information Act: Exemption 7(C), at 1–2 (2019), https://www.justice.gov/oip/page/file/1206756/download [https://perma.cc/VE85-4NWX] [hereinafter DOJ Guide to Exemption 7(C)]; Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 166 (2004).
  44. S. Rep. No. 89-813, at 9 (1965).
  45. Hoefges et al., supra note 14, at 12–13.
  46. See U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).
  47. See Brinkerhoff, supra note 20, at 579–82.
  48. See Rose, 425 U.S. at 380–81 (creating a balancing test which weighs public interests against personal-privacy interests); U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 776–80 (1989) (defining the scope of public interests and privacy interests).
  49. U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982); U.S. Dep’t of Just., Department of Justice Guide to the Freedom of Information Act: Exemption 6, at 4 (2019), https://www.justice.gov/oip/page/file/1207336/download [https://perma.cc/L8BW-S4DL] [hereinafter DOJ Guide to Exemption 6].
  50. 5 U.S.C. § 552 (b)(6).
  51. Wash. Post, 456 U.S. at 601 (noting that Exemption 6 “surely was not intended to turn upon the label of the file which contains the damaging information”); see also N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1004, 1009–10 (D.C. Cir. 1990) (en banc) (holding that an audio tape of the final moments of the astronauts aboard the Challenger space shuttle qualified as a “similar file” under Exemption 6).
  52. Wash. Post, 456 U.S at 602.
  53. Id. at 600–02 (rejecting the argument that “similar files” only protect intimate information). How to interpret and apply Exemption 6’s threshold requirement had been a point of contention among the lower courts for some time. A number of lower courts had held that records must contain intimate information before they could fall within the scope of “personnel and medical files and similar files.” See Hoefges et al., supra note 14, at 20.
  54. 5 U.S.C. § 552 (b)(7)(C).
  55. See Lauren Bemis, Note, Balancing a Citizen’s Right to Know with the Privacy of an Innocent Family: The Expansion of the Scope of Exemption 7(C) of the Freedom of Information Act Under National Archives & Records Administration v. Favish, 25 J. Nat’l Ass’n Admin. L. Judges 507, 511 (2005); Richard L. Huff & Craig E. Merutka, Freedom of Information Act Access to Personal Information Contained in Government Records: Public Property or Protected Information?, Army L., Jan. 2010, at 2, 5 (noting that the threshold can be met by more than just criminal investigations).
  56. FBI v. Abramson, 456 U.S. 615, 631–32 (1982).
  57. Huff & Merutka, supra note 54, at 5.
  58. See DOJ Guide to Exemption 6, supra note 48, at 2.
  59. 425 U.S. 352, 372 (1976).
  60. See, e.g., Multi Ag Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1229–30 (D.C. Cir. 2008) (establishing that any privacy interest greater than de minimis triggers the balancing test); Fed. Lab. Rels. Auth. v. U.S. Dep’t of Veterans Affs., 958 F.2d 503, 510 (2d Cir. 1992) (“Hence, once a more than de minimis privacy interest is implicated the competing interests at stake must be balanced in order to decide whether disclosure is permitted under FOIA.”); see also DOJ Guide to Exemption 6, supra note 48, at 71–72; DOJ Guide to Exemption 7(C), supra note 42, at 27.
  61. U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 505 (1994) (Ginsburg, J., concurring in the judgement).
  62. 489 U.S. 749, 763, 769 (1989).
  63. Id. at 763.
  64. Id. at 775; see also id. at 774 (“FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”). The Supreme Court’s core purpose doctrine is also often called the central purpose test. The two phrases are interchangeable.
  65. See Hoefges et al., supra note 14, at 56–57.
  66. For a few critiques, see Hoefges et al., supra note 14, at 25–26; Beall, supra note 14, at 1258; Halstuk, supra note 14, at 463–68. Reporters Committee was at least partially a response to the flood of FOIA requests by private individuals seeking information only for their own benefit. The core purpose doctrine prevents these kinds of requests. See infra note 170 and accompanying text.
  67. U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 507–08 (Ginsburg, J., concurring in the judgement).
  68. Id. at 502 (withholding disclosure of home addresses); N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 782 F. Supp. 628, 633 (D.D.C. 1991) (withholding disclosure of recordings of the astronauts aboard the Challenger); World Pub’g Co. v. U.S. Dep’t of Just., 672 F.3d 825, 831–32 (10th Cir. 2012) (withholding “mug shots” of arrestees). Courts also routinely protect more mundane information such as social security numbers, telephone numbers, and medical information. See DOJ Guide to Exemption 6, supra note 48, at 73–75 for a more thorough list.
  69. 502 U.S. 164 (1991).
  70. Id. at 178–79.
  71. Id. at 166.
  72. Id. at 167–69.
  73. Ray v. U.S. Dep’t of Just., 908 F.2d 1549, 1554–55 (11th Cir. 1990).
  74. Id. at 1554.
  75. Id. at 1555–56.
  76. Ray, 502 U.S. at 176–77.
  77. Id.
  78. Id.
  79. See id. at 180–81 (Scalia, J., concurring in part and concurring in the judgement).
  80. Id. at 178–79.
  81. Id. at 178.
  82. Id. at 178–79.
  83. Id. at 178.
  84. Id. at 179.
  85. Id.
  86. Id.
  87. Id. See the discussion of Favish, infra at Section III.C, for the Court’s most recent guidance on what evidence can overcome the presumption of legitimacy.
  88. Id. at 180 (Scalia, J., concurring in part and in judgement) (“The majority does not, in my view, refute the persuasive contention that consideration of derivative uses, whether to establish a public interest or to establish an invasion of privacy, is impermissible.”).
  89. Id.
  90. Id. at 180–81.
  91. Id.
  92. Id.; see also Eric J. Sinrod, Blocking Access to Government Information Under the New Personal Privacy Rule, 24 Seton Hall L. Rev. 214, 226 (1993) (noting the Court’s double standard on the derivative use issue).
  93. Ray, 502 U.S. at 182.
  94. The one exception to this expansion of privacy rights came in the Court’s most recent privacy exemption case, FCC v. AT&T Inc., 562 U.S. 397 (2011). In this decision, the Court held that “personal privacy” as protected by Exemption 7(C) does not extend to corporations. Because the Court found that the exemption did not apply, that case does not impact the derivative use issue.
  95. 510 U.S. 487 (1994).
  96. Id. at 487, 497.
  97. Id. at 490 (quoting 5 U.S.C. § 7114(b)(4)).
  98. Id. at 490–91.
  99. Id. at 491–92.
  100. Id. at 495.
  101. Id. at 497.
  102. Id.
  103. Id. at 502.
  104. See Karl J. Sanders, Note, FOIA v. Federal Sector Labor Law: Which “Public Interest” Prevails? 62 U. Cin. L. Rev. 787, 813–15 (1993) (arguing that the facts of FLRA presented a strong opportunity for considering derivative benefits).
  105. Fed. Lab. Rels. Auth., 510 U.S. at 500 (quoting U.S. Dep’t of Just. v. Reps. Comm., 489 U.S. 749, 763 (1989)).
  106. Id. at 501.
  107. Id. In contrast, the Fifth Circuit had found it hard to see how receiving mail could ever be an unwarranted invasion of privacy. Anyone uninterested in the mail could simply “send it to the circular file.” Fed. Lab. Rels. Auth. v. U.S. Dep’t of Def., 975 F.2d 1105, 1110 (5th Cir. 1992).
  108. Justice Ginsburg, although concurring in the judgement, wrote separately to express her unease about the direction of the Court’s FOIA jurisprudence. Fed. Lab. Rels. Auth., 510 U.S. at 504–09 (Ginsburg, J., concurring in the judgement). She observed that Reporters Committee had “changed the FOIA calculus” by implementing a core purpose doctrine that had no origin in the statutory language. Id. at 505–07. Nevertheless, she concurred because she felt that Reporters Committee was controlling precedent and that the other members of the Court were committed to preserving it. Id. at 509.
  109. Bibles v. Or. Nat’l Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curiam).
  110. Or. Nat’l Desert Ass’n v. Bibles, 83 F.3d 1168, 1169–71 (9th Cir. 1996), rev’d, 519 U.S. 355 (1997).
  111. Id. at 1171.
  112. Bibles, 519 U.S. at 355–56.
  113. Id.
  114. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 158 (2004).
  115. Id. at 172. While Favish altered the Court’s doctrine in important ways, it left the basic foundation of Reporters Committee intact despite an amicus brief arguing that a recent amendment to FOIA effectively overruled the core purpose doctrine. Brief for Reporters Committee for Freedom of the Press as Amicus Curiae at 24, Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157 (2004) (No. 02-954). When Congress amended FOIA to clarify that it also extended to records in an electronic format, it added that the purpose of the statute was to provide a right to access non-exempt records “for any public or private purpose.” Pub. L. No. 104-231, § 2(a)(1), 110 Stat. 3048 (1996) (emphasis added). Senator Patrick Leahy, who introduced the amendment, wrote in a Senate report that this language was specifically intended to counter the Court’s erroneous core purpose doctrine, but the Court brushed past this without comment in Favish. See S. Rep. No. 104-272, at 26–27 (1996); Halstuk & Davis, Public Interest Be Damned, supra note 24, at 1015–16.
  116. Favish, 541 U.S. at 174–75.
  117. See U.S. Dep’t of Just. Off. of Info. & Priv., Supreme Court Decides to Hear “Survivor Privacy” Case (2003), https://www.justice.gov/archive/oip/foiapost/2003foiapost17.htm [https://perma.cc/48K3-SHTX].
  118. Favish, 541 U.S. at 161–64.
  119. Id. at 165.
  120. Id. at 165–69.
  121. Id. at 166.
  122. Id. at 166–67.
  123. Id. at 173–75.
  124. Id. at 174. The Department of Justice has found that most plaintiffs fail to meet this heightened evidentiary standard. DOJ Guide to Exemption 6, supra note 48, at 67. However, for one example in which this standard was found to have been met, see Union Leader Corp. v. United States Department of Homeland Security, 749 F.3d 45 (1st Cir. 2014), discussed infra at Section V.D.
  125. Favish, 541 U.S. at 174, 175. The Court’s requirement places requestors in a Catch-22. To be allowed to investigate government misconduct, they must first be able to offer significant evidence of government misconduct. This requirement, while tracking with common sense by refusing to let bare allegations trump concrete privacy interests, has no roots in FOIA’s text. See Halstuk, Secrecy Trumps Transparency, supra note 14, at 468.
  126. Favish, 541 U.S. at 175.
  127. Id. at 172.
  128. Id.
  129. Id. While the Court contextualized its requirement as applying to Exemption 7(C), it is probable that it would interpret Exemption 6 in the same way because of their similarity, which the Court has repeatedly recognized. See Fed. Lab. Rels. Auth., 510 U.S. at 496 n.6 (explaining that the difference between the two exemptions is purely in the magnitude, not kind, of privacy protection provided).
  130. Bemis, supra note 54, at 539–40.
  131. See Fed. Lab. Rels. Auth., 510 U.S. at 507 (Ginsburg, J., concurring in the judgement) (“A FOIA requester need not show in the first instance that disclosure would serve any public purpose.” (emphasis added)).
  132. 5 U.S.C. § 552(a)(4)(B).
  133. U.S. Dep’t of Just., Freedom of Information Act Guide & Privacy Act Overview 432–33, 432 n.47 (Pamela Maida ed., May 2004 ed.) (citing Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 878 (D.C. Cir. 1989)).
  134. See the discussion of Ray supra Part II for a full analysis of the Scalia-Kennedy concurrence.
  135. See supra notes 122–25 and accompanying text.
  136. U.S. Dep’t of State v. Ray, 502 U.S. 164, 178–79 (1991).
  137. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172–75 (2004).
  138. Id.
  139. Id. at 172–73 (“We do not in this single decision attempt to define the reasons that will suffice, or the necessary nexus between the requested information and the asserted public interest that would be advanced by disclosure.”).
  140. See Hoefges et al., supra note 14, at 39. While this was noted pre-Favish, it is still true after that case.
  141. Brinkerhoff, supra note 20, at 577.
  142. See Wash. Post Co. v. U.S. Dep’t of Health & Hum. Servs., 690 F.2d 252, 261 (D.C. Cir. 1982).
  143. See Lillian R. BeVier, Information About Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection, 4 Wm. & Mary Bill Rts. J. 455, 485 (1995) (arguing that the Supreme Court had turned the privacy exemptions into shields for nondisclosure).
  144. Cf. Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 878 (D.C. Cir. 1989) (“Where there is a substantial probability that disclosure will cause an interference with personal privacy, it matters not that there may be two or three links in the causal chain.”).
  145. See U.S. Dep’t of State v. Ray, 502 U.S. 164, 181 (1991) (Scalia, J., concurring).
  146. See supra Part III and Section IV.C for a discussion of the Court’s implicit acceptance of derivative benefits in certain circumstances.
  147. Bibles v. Or. Nat’l Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curiam).
  148. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172–74 (2004).
  149. See, e.g., Hopkins v. U.S. Dep’t of Hous. & Urb. Dev., 929 F.2d 81, 88 (2d Cir. 1991) (dismissing a derivative benefits argument because “[w]ere we to compel disclosure of personal information with so attenuated a relationship to governmental activity, however, we would open the door to disclosure of virtually all personal information, thereby eviscerating the FOIA privacy exemptions”).
  150. See Favish, 541 U.S. at 174.
  151. Id. at 170–72.
  152. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 508–09 (1994) (Ginsburg, J., concurring in the judgement).
  153. See Navigator Publ’g v. U.S. Dep’t of Transp., 146 F. Supp. 2d 68, 70–71 (D. Me. 2001) (rejecting an argument based on derivative benefits in part because the court doubted the requestor’s sincerity, believing that the requestor would use the requested information for personal profit rather than to vindicate the public interest).
  154. See, e.g., Hoefges et al., supra note 14, at 60–63 (advocating for an expansive conception of public interest).
  155. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 161 (1989) (Scalia, J., dissenting) (remarking that courts treat the need to narrowly construe FOIA’s exemptions as “a formula to be recited rather than a principle to be followed”); Fed. Lab. Rels. Auth., 510 U.S. at 507 (Ginsburg, J., concurring in the judgement) (“The Reporters Committee ‘core purpose’ limitation is not found in FOIA’s language.”).
  156. Whether this shield should have been created by Congress rather than the Supreme Court is irrelevant to the overall point that the core purpose doctrine has certain benefits as a matter of policy. Early commentators on FOIA often viewed it as a sort of Pandora’s box which had released all number of unforeseen consequences and threatened to inundate government agencies with requests. Reporters Committee was an attempt to put the lid back on the box. See Beall, supra note 14, at 1253–56.
  157. See Hoefges et al., supra note 14, at 10 n.49.
  158. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 170 (2004).
  159. See Manna v. U.S. Dep’t of Just., 51 F.3d 1158, 1165 (3d Cir. 1995).
  160. Other scholars have suggested rebalancing the disclosure scales through an opposite approach: narrowing the relevant privacy interests rather than expanding the conception of the public interest. See Hoefges et al., supra note 14, at 63. Under this approach, the privacy exemptions cannot be triggered merely by the existence of personally identifiable information in the requested documents. Instead, the government can only invoke the privacy exemptions if the requested documents contain personal information that is intimate in nature or inherently private. Id. at 63 & n.435. While such a proposal is outside the scope of this article, there are reasons to believe that the Supreme Court has expanded the protected zone of privacy beyond the statute’s text and purpose. However, this proposal runs into the same difficulty as the calls to overturn the core purpose doctrine—it would require dismantling Reporters Committee, which is highly unlikely. See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989) (indicating that FOIA’s privacy exemptions protect more than what is inherently private).
  161. A number of district courts across the country have also allowed disclosure based on derivative benefits. For a substantial but far from comprehensive list, see DOJ Guide to Exemption 6, supra note 48, at 57–59.
  162. In contrast to the limited caselaw on derivative benefits, consideration of derivative privacy harms is ubiquitous among the circuits, even if courts seldom acknowledge it as such. See, e.g., Prudential Locations LLC v. U.S. Dep’t of Hous. & Urb. Dev., 739 F.3d 424, 426, 431 (9th Cir. 2013) (finding that disclosing the names of those who had alleged a certain business had broken federal law would risk exposing them to retaliation, stigma, and harassment); Forest Guardians v. U.S. FEMA, 410 F.3d 1214, 1216, 1220 (10th Cir. 2005) (finding that privacy interests would be invaded by disclosure of electronic mapping files because lot numbers could be manipulated to reveal home addresses). Only the Fifth Circuit, citing the Ray concurrence approvingly, has expressed doubt over whether derivative harms should be accorded any weight. See Cooper Cameron Corp. v. U.S. Dep’t of Lab., 280 F.3d 539, 554 n.68 (5th Cir. 2002) (noting that the court’s ruling accorded with the Ray concurrence); Sherman v. U.S. Dep’t of the Army, 244 F.3d 357, 365 n.14 (5th Cir. 2001) (citing the Ray concurrence and expressly disclaiming that Court’s holding involved weighing derivative harms). However, the Fifth Circuit has not addressed the issue since the Supreme Court’s decision in Favish, and one of its district courts has more recently found that weighing derivative harms is permitted. See Inclusive Cmtys. Project, Inc. v. U.S. Dep’t of Hous. & Urb. Dev., No. 3:14-cv-3333, 2016 U.S. Dist. LEXIS 123779, at *21–22 (N.D. Tex. Sept. 13, 2016) (choosing to consider derivative privacy harms because the Supreme Court and the D.C. Circuit do so). Because derivative harms are not a serious point of contention among the circuits, the following discussion is limited to derivative benefits.
  163. See, e.g., Beall, supra note 14, at 1259–60 (arguing that FLRA was the death knell for derivative benefits).
  164. ACLU v. U.S. Dep’t of Just., 655 F.3d 1, 15 (D.C. Cir. 2011).
  165. See Cooper Cameron Corp., 280 F.3d at 543.
  166. ACLU, 655 F.3d at 3.
  167. Id. at 3–4.
  168. Id. at 4–5.
  169. Id. at 5.
  170. Id. at 6–12.
  171. Id. at 11–12. But cf. Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 53 (1st Cir. 2014) (finding that because the requestor did not intend to directly contact the subjects of the requested documents, the privacy interests at stake were diminished).
  172. ACLU, 655 F.3d at 15.
  173. Id. at 13–14.
  174. Id. at 15.
  175. Id. at 15–16.
  176. See Multi AG Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1226 (D.C. Cir. 2008) (allowing disclosure on a derivative benefits theory); Painting & Drywall Work Pres. Fund v. U.S. Dep’t of Hous. & Urb. Dev., 936 F.2d 1300 (D.C. Cir. 1991) (denying disclosure but finding that the ability of a journalist to use the requested information to further investigate governmental action weighed in favor of the public interest).
  177. Multi AG Media LLC, 515 F.3d at 1224.
  178. Id. at 1231–32.
  179. Id. at 1231. But see McCutchen v. Dep’t of Health & Hum. Serv., 30 F.3d 183, 188 (D.C. Cir. 1994) (observing that the mere desire to oversee how the government is performing its duties does not create a public interest that can outweigh privacy concerns).
  180. See Lepelletier v. FDIC, 164 F.3d 37, 48 (D.C. Cir. 1999); see also Halstuk & Davis, The Public Interest Be Damned, supra note 24, at 1011–13.
  181. Lepelletier, 164 F.3d at 39.
  182. Id. at 47.
  183. Id. at 48.
  184. Id.
  185. Id. The D.C. Circuit also forbade the district court from releasing the depositors’ names in conjunction with the amount owed to them by the government, another sign that it believed the depositors did possess a privacy interest. Id.
  186. See Long v. Off. of Pers. Mgmt., 692 F.3d 185, 198 (2d Cir. 2012); Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 293 (2d Cir. 2009); Hopkins v. U.S. Dep’t of Hous. & Dev., 929 F.2d 81, 88–89 (2d Cir. 1991).
  187. Hopkins, 929 F.2d at 82.
  188. Id. at 88.
  189. Id.
  190. Associated Press, 554 F.3d at 290 (“Although this Court has not addressed the issue of whether a derivative use theory is cognizable under FOIA as a valid way by which to assert that a public interest is furthered, we have indicated that it may not be.”).
  191. Id. at 279–80.
  192. Id. at 290. See also Long v. Off. of Pers. Mgmt., 692 F.3d 185, 194 (2d Cir. 2012) (“The use of personnel files to contact government employees in the hopes of uncovering malfeasance does not serve FOIA’s objectives.”). But see Kuzma v. U.S. Dep’t of Just., 692 F. App’x 30, 35 (2d Cir. 2017) (rejecting a derivative use argument that would merely “provide further avenues for research” into alleged government misconduct). While the Second Circuit’s comments here seem broad enough to go beyond skepticism just related to direct contact, the plaintiff’s derivative benefits argument was so threadbare and the court’s analysis so perfunctory that it is unlikely that this case hints at anything larger. See id.
  193. See Forest Servs. Emps. v. U.S. Forest Serv., 524 F.3d 1021, 1028 (9th Cir. 2008) (rejecting a direct contact argument); Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir. 2009) (same).
  194. See Elec. Frontier Found. v. Off. of the Dir. of Nat’l Intel., 639 F.3d 876, 888–89 (9th Cir. 2010); Rosenfield v. U.S. Dep’t of Just., 57 F.3d 803, 815 (9th Cir. 1995).
  195. See Forest Servs., 524 F.3d at 1027–28.
  196. Id at 1028.
  197. Id. See also Lahr, 569 F.3d at 975 (finding Forest Services to be binding precedent and similarly denying disclosure where the public interest could only be advanced at the expense of privacy via direct contact); Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep’t of the Air Force, 26 F.3d 1479, 1485 (9th Cir. 1994) (rejecting a derivative benefits argument predicated on direct contact because the public interest and the privacy interest were “intertwined”).
  198. See Elec. Frontier Found., 639 F.3d at 887–88; see also Rosenfield, 57 F.3d 803, 815 (allowing disclosure of names so that the public could ascertain whether the FBI improperly targeted the leadership of a political movement).
  199. Elec. Frontier Found., 639 F.3d at 880–81.
  200. Id. at 888.
  201. Id. at 887–88.
  202. Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 48 (1st Cir. 2014).
  203. For analysis of the evidentiary standards laid out by the Supreme Court in Favish, see the discussion supra Section III.C.
  204. Union Leader, 749 F.3d at 54.
  205. Id. at 55–56.
  206. Id. at 56.
  207. News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1174 (11th Cir. 2007). The Eleventh Circuit also allowed disclosure based on derivative benefits in Ray before the Supreme Court reversed. Because of that reasoning, at least one district court in the aftermath of Ray found that considering derivative benefits was still permissible until the Eleventh Circuit ruled otherwise, since the Supreme Court had declined to answer that question. See Ray v. U.S. Dep’t of Just., INS, 852 F. Supp. 1558, 1564–65 (S.D. Fla. 1994).
  208. News-Press, 489 F.3d at 1177–78.
  209. Id. at 1178–81.
  210. Id. at 1192–93. The court reached its decision even while knowing that the newspapers would likely need to contact some recipients directly in the course of their investigation. See id. at 1203. This stands in contrast to the decisions of the Ninth Circuit, which generally do not allow disclosure where the derivative benefits entail direct contact with the identifiable subjects of the requested documents.
  211. Id. at 1205.
  212. News-Press v. U.S. Dep’t of Homeland Sec., 2005 U.S. Dist. LEXIS 27492, at *54 (M.D. Fla. Nov. 4, 2005).

Where Nature’s Rights Go Wrong

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There is an increasing push by environmentalists, scholars, and some politicians in favor of a form of environmental rights referred to as “rights of nature” or “nature’s rights.” A milestone victory in this movement was the incorporation of rights of nature into the Ecuadorian constitution in 2008. However, there are reasons to be skeptical that these environmental rights will have the kinds of transformative effects that are anticipated by their most enthusiastic proponents. From a conceptual perspective, a number of difficulties arise when rights (or other forms of legal or moral consideration) are extended to non-human biological aggregates, such as species or ecosystems. There are two very general strategies for conceiving of the interests of such aggregates: a “bottom-up” model that grounds interest in specific aggregates (such as particular species or ecosystems), and then attempts to compare various effects on those specific aggregates; and a “top-down” model that grounds interests in the entire “biotic community.” Either approach faces serious challenges. Nature’s rights have also proven difficult to implement in practice. Courts in Ecuador, the country with the most experience litigating these rights, have had a difficult time using the construct of nature’s rights in a non-arbitrary fashion. The shortcomings of nature’s rights, however, do not mean that constitutional reform cannot be used to promote environmental goals. Recent work in comparative constitutional law indicates that organizational rights have a greater likelihood of achieving meaningful results than even quite concrete substantive rights. Protection for the role of environmental groups within civil society may, then, serve as the most effective way for constitutional reform to vindicate the interests that motivate the nature’s rights movement.

Introduction

One of the most basic questions in environmental law, policy, and ethics is whether human societies owe obligations to non-humans. For the most part, U.S. environmental law has embraced a human-centered perspective, which justifies environmental protection primarily on the basis of benefits delivered to human beings. But, from the beginnings of the modern environmental movement, there have been efforts to promote an alternative, bio-centered view. Justice Douglas’s dissent in Sierra Club v. Morton—in which he called on the Court to grant legal personhood to “valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—provides a canonical expression of the path not taken.1.Sierra Club v. Morton, 405 U.S. 727, 742–43 (1972) (Douglas, J., dissenting). For a discussion of the Court’s reluctance to take up a biocentric view, see Jonathan Z. Cannon, Environment in the Balance: The Green Movement and the Supreme Court (2015).Show More

In recent years, this bio-centered perspective has gained renewed traction in global environmental law discourse, especially through a new generation of constitutional and statutory rights extended directly to natural entities. A particular watershed moment came in 2008 when the country of Ecuador became the first in the world to recognize rights for nature in its constitution.2.See infra Part I. We use the phrase “rights for nature” and “nature’s rights” interchangeably throughout this Article.Show More These new rights have come at a time of increasing frustration with the failure of legal institutions to come to terms with grave environmental threats such as climate change.3.See, e.g., Roger Hallam, Common Sense for the 21st Century: Only Nonviolent Rebellion Can Now Stop Climate Breakdown and Social Collapse (2019).Show More Activists, commentators, and scholars have argued that “nature’s rights” may be able to achieve the kind of sustained and transformative environmental progress that has so far proven elusive.4.See, e.g., David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (2017); infra Section IV.A.Show More

In this Article, we provide a dose of skepticism.5.Other scholars have raised a number of general problems with substantive environmental rights. See, e.g., James R. May & Erin Daly, Global Environmental Constitutionalism 59 (2015) (collecting sources critical of constitutionalizing environmental rights); Tim Hayward, Constitutional Environmental Rights 74–75 (2004) (noting that substantive environmental rights might have an atomizing effect as collective demands for justice become fragmented into individual litigation and claims); César Rodríguez-Garavito, A Human Right to a Healthy Environment?, in The Human Right to a Healthy Environment 155, 166 (John H. Knox & Ramin Pejan eds., 2018) (arguing that substantive environmental rights “fall[] short of . . . transformational promises, as the language of rights tends to be more definitive than the complications of implementation warrant”). In this Article, we focus on the subclass of environmental rights that grant cognizable legal rights and remedies to non-human entities, especially aggregates such as species, ecosystems, or rivers.Show More A defining feature of environmental policy is that it touches on complex, interconnected systems. As a consequence, environmental policy tends to have effects across a large number of (at least arguably) morally relevant dimensions. Outcomes that are affected by environmental policies include many features of human health and well-being, biodiversity and extinction, the protection of wilderness, and the stability of ecosystems. The natural world is not a monolithic “it,” but a “they” in the broadest possible understanding of that term.6.Cf. Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239 (1992) (examining the difficulty of attributing intentionality to collective entities in the context of statutory interpretation).Show More This basic, pragmatic reality means that the process of environmental policymaking often requires that comparisons be made across alternatives that have both positive and negative effects on human beings and the non-human world.7.As is discussed in more detail below, the use of the language of rights does not obviate the need for comparison. See infra Part II. If anything, the notion of legal or moral rights simply makes the notion of comparison more complicated by introducing ideas such as lexical priority. See generally Jeremy Waldron, Rights in Conflict, 99 Ethics 503 (1989) (exploring possibilities of moral reasoning in cases of rights conflict).Show More

A common example of an environmental policy choice that governments have faced many times is whether or not to grant a permit for a hydroelectric dam. Granting a permit may further economic development for some while destroying the property of others; the dam may reduce carbon dioxide emissions by displacing fossil fuel electricity generation, but its construction may also wipe out the habitat of an endangered species. If the concept of nature’s rights is not to be entirely paralyzing, it must admit of some way for these heterogeneous effects to be balanced against each other to decide whether, all things considered, it is better to grant the permit or not.

This balancing analysis requires that the various entities that are affected by a policy be defined and that the effects of the policy on these entities be compared. Each of these steps raises difficulties for a nature’s rights framework. At the definitional step, the entities in question will frequently be aggregates, such as ecosystems or species.8.For purposes of this Article, we focus on an understanding of nature’s rights that involves biological aggregates such as species. An alternative formulation of nature’s rights could ignore such aggregates and instead deal exclusively with individual organisms. Such a view could largely, or entirely, overlap with the animal welfare perspective promoted by figures such as Peter Singer. See Peter Singer, Animal Liberation (1975). Some efforts have been made to articulate a framework for considering animal welfare in this manner. See, e.g., Alexis Carlier & Nicolas Treich, Directly Valuing Animal Welfare in (Environmental) Economics, 14 Int’l Rev. Env’t & Res. Econ. 113 (2020); Gary E. Varner, Personhood, Ethics, and Animal Cognition: Situating Animals in Hare’s Two Level Utilitarianism (2012). But nature’s rights, at least as it has been articulated so far, generally take as rights bearers aggregates such as species, ecosystems, rivers, and even the totality of nature. This makes them very different from an expanded welfarism that accounts for the pain and pleasures of non-human organisms. See infra notes 93–101 and accompanying text.Show More There may be multiple ways of drawing lines around these aggregates, and estimates of the net consequences of a policy may be sensitive to these definitions. If there is no principled way to decide how to define the relevant entities, the decision of whether a policy is, on balance, desirable will be contingent on arbitrary line-drawing choices.

Even if the entities could be defined in a satisfactory fashion, making comparisons across entities raises additional challenges. Policy analyses limited just to effects on humans raise the classic problem of interpersonal comparisons. Solutions to this problem are generally grounded in the mutual intelligibility of people’s motivations, interests, and reasons. A shared and comprehensible intersubjectivity that allows for deliberation and bargaining undergirds notions such as the social welfare function and the social contract, which are the dominant approaches for evaluating public policy choices. An equivalent shared understanding with entities like species, ecosystems, and landscapes is missing, leaving no clear foundation for an analytic structure capable of rendering effects across these entities comparable.9.By contrast, for ethical systems that embrace animals as worthy of moral consideration, the shared experience of pain and pleasure is a natural starting place for a balancing analysis. See Singer, supra note 8, at 8 (“The capacity for suffering and enjoyment is a prerequisite for having interests at all . . . .”). Of course, profound differences between humans and non-human animals also raise a host of challenges in attempting to make moral judgment in the face of trans-species effects. See Douglas A. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity 195 (2010) (noting a “sense of awe and incomprehension regarding the other’s being”). See generally Matthew Calarco, Zoographies: The Question of the Animal from Heidegger to Derrida (2008) (illustrating difficulties in moral reasoning about animals).Show More

This problem can be restated as one arising from multi-dimensionality. In standard forms of environmental policy analysis, the heterogeneous effects associated with a government decision are reduced to a single dimension along which comparisons can be made.10 10.See generally EPA, Guidelines for Preparing Economic Analyses 7-1 (2010) (“Estimating benefits in monetary terms allows the comparison of different types of benefits in the same units, and it allows the calculation of net benefits—the sum of all monetized benefits minus the sum of all monetized costs—so that proposed policy changes can be compared to each other and to the baseline scenario.”).Show More As practiced in the United States, that dimension is often a monetary metric based on the affected parties’ willingness to pay.11 11.Id. at 7-6.Show More If non-human entities have their own intrinsic value, above and apart from the value assigned to them by people, then effects on those entities must also be measured along a common dimension to make them comparable. But none of the tools or concepts that are used to translate effects on people to a single dimension can readily be applied to all of the relevant non-human entities. This leaves policymakers with a highly multi-dimensional space where policy comparisons will often be indeterminate. Unless there is some sensible way to reduce the dimensionality used to describe outcomes, then it will often be unclear whether a policy infringes on, promotes, or is neutral with respect to the interests that undergird nature’s rights.12 12.Comparisons of effects on various interests need not be quantitative in nature, but to avoid paralysis, the interpretation of the interests implicated by environmental policy cannot imply that those interests are so strongly incommensurable that it is impossible to evaluate policies with diverse effects.Show More

Moving from the theoretical to the practical, experience with rights for nature has shown that their conceptual deficiencies have led to confusion, inefficiency, and arbitrariness—without any obvious environmental benefit. Multiple litigants pursuing conflicting goals have come to court claiming to speak on behalf of nature’s rights, forcing courts not only to balance heterogeneous effects of policy choices but also to arbitrate between alternative plausible representational claims. Where nature’s rights have been litigated, courts have struggled mightily to make sense of the inquiry before them.13 13.These early struggles do not necessarily mean that courts will never land on a well-founded and workable understanding of nature’s rights. Indeed, one way that nature’s rights provisions could be defended is that they pose the question to courts of how best to articulate the obligations of human societies to the natural world. On this account, at this stage in their development, nature’s rights provisions are not intended to have determinate substantive content. Rather, they initiate a deliberative process involving courts, as well as other social actors, focused on the appropriate relationship between humans and nature. The substantive content will emerge from this process over time. But, inasmuch as the concept of nature’s rights continues to involve intrinsic value placed on biological aggregates such as species, ecosystems, or nature itself, it will face the challenges raised in Parts II and III below.Show More

For all these reasons, rights for nature are unlikely to provide the solution that frustrated environmentalists seek.14 14.We draw a sharp distinction between nature’s rights and animal rights. See supra note 8. Under the former, biological aggregates of various sorts—including species, ecosystems, rivers, landscapes, or all of nature—are understood as having rights or interests. Under the latter, individual organisms (typically animals) are understood as having rights or interests. Our critique is focused on nature’s rights and leaves to the side the question of whether and how the rights, interests, or well-being of individual organisms could or should be considered when evaluating the desirability of environmental policy.Show More But that does not mean that constitutional rights and courts are a dead-end for environmental progress. Recent work in comparative constitutional law has focused on the characteristics of constitutional rights that are most associated with success. In general, that literature finds that provisions that protect organizations are most likely to be effective.15 15.See Kevin L. Cope, Cosette D. Creamer & Mila Versteeg, Empirical Studies of Human Rights Law, 15 Ann. Rev. L. & Soc. Sci. 155, 171 (2019) (summarizing relevant research); Georg Vanberg, Substance vs. Procedure: Constitutional Enforcement and Constitutional Choice, 80 J. Econ. Behav. & Org. 309, 317 (2011). See generally Adam S. Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am. J. Pol. Sci. 575 (2016) (providing an in-depth empirical examination of the effectiveness of constitutional rights).Show More There is a lesson here for efforts to use constitution-making to achieve environmental goals. Concrete rights for the people and organizations that seek to promote a healthy relationship with the environment are more likely to lead to results than guarantees to abstract non-human entities.

The remainder of this Article proceeds as follows. Part I discusses the spread of rights for nature as part of a more general trend toward the expansion of environmental rights. Many activists, commentators, and courts have enthusiastically embraced rights for nature, in part due to frustration with traditional forms of environmental governance. Starting from their origin in Ecuador, rights for nature have been adopted in a variety of jurisdictions at the international, national, and local levels. These rights are now the topic of serious discussion by international institutions and have been promoted by many academics and environmental organizations.

Part II focuses on conceptual challenges that arise when rights for nature are understood in a bottom-up manner, as arising from the rights (or interests) of biological aggregates such as species or ecosystems.16 16.As is discussed below, we borrow from Raz to treat nature’s rights as implying that entities of some kind are the bearers of interests of sufficient moral weight to justify assigning a duty to some other. See Joseph Raz, The Morality of Freedom 166 (1988). For our purposes, we set aside the additional complications associated with legal or moral reasoning about rights, and instead assume that if the underlying interests can be articulated in a meaningful way, then those additional difficulties can be addressed. See infra Part II.Show More The core issue is that environmental disagreements often involve conflicts within the domain of nature, implying that any option selected by a decision maker will create both benefits and harms for entities—such as species, ecosystems, and landscapes—that make up the natural world. When such conflicts arise between the rights (or interests) of some entities and others, decision makers must engage in some form of balancing. Drawing from work in moral philosophy and welfare economics, we examine the difficulties of deriving a coherent framework for this balancing inquiry. In particular, we raise difficulties associated with defining the relevant entities and their interests. Without a framework for balancing harms against each other when rights (or interests) conflict, decision makers are left with no criteria that can be used to arbitrate disputes in many concrete cases.

Part III examines whether some of the problems discussed in Part II can be resolved by understanding nature’s rights not as the aggregation of the rights of other entities, such as species or ecosystems, but in a top-down manner that begins with the biotic community as a whole.17 17.The distinction between a bottom-up and a top-down understanding of nature’s rights tracks the concepts of biocentrism and ecocentrism from the environmental ethics literature. See Dale Jamieson, Ethics and the Environment: An Introduction 145–53 (2008).Show More We raise some initial objections to this approach, which are grounded in the problem of separation: both the need to respect the separate interests of at least some non-human entities and the conceptual difficulty of separating human activity from nature. We then use data from the Yale Environmental Performance Index to test whether there is a single dimension that captures existing metrics for environmental performance. We find that there is not. Finally, we discuss the possibility for a relatively low-dimensional representation of environmental performance to derive a set of “frontiers” that represent a space for nature’s rights. Although this may be the most promising existing path forward, we examine some of its deficiencies.

Part IV examines the application of nature’s rights in practice. We focus on Ecuador, the country with the most practical experience in this area. What we find is not heartening. In the limited number of cases where they have been applied, rights for nature have been used by a variety of groups and individuals, all speaking on behalf of nature, to bring conflicting claims. Facing an impossible situation, courts have done their best, but the results they reach have largely been arbitrary and ungrounded in any meaningful normative criteria. We then offer some justifications for nature’s rights that are not grounded in their immediate practical effect, but rather for their symbolic, expressive, or cultural reform function. This may be the best justification for nature’s rights, although many proponents of these rights focus on more short-term practical effects. We finally conclude with a discussion of lessons that can be learned from recent work in comparative constitutional law for the design of environmental rights. In applying those lessons, we argue that, although there may be a place for nature’s rights in the toolkit as a means of communicating social values and commitments, more targeted rights that provide tangible protections for a robust civil society presence for environmental advocates may be more likely to lead to tangible results.

  1. * Mauricio Guim is an assistant professor of law at the Instituto Tecnológico Autónomo de México (ITAM); Michael A. Livermore is a professor of law at the University of Virginia. We thank participants at workshops held by the University of Texas at Austin School of Law, the University of Kentucky Law School, the American Law and Economics Association, and the Latin American Workshop in Law and Economics for valuable feedback. We also thank Matthew Adler, Jonathan Cannon, Willis Jenkins, Richard L. Revesz, and Mila Versteeg for comments and Austin Hetrick and Libby Murray for research assistance.
  2. Sierra Club v. Morton, 405 U.S. 727, 742–43 (1972) (Douglas, J., dissenting). For a discussion of the Court’s reluctance to take up a biocentric view, see Jonathan Z. Cannon, Environment in the Balance: The Green Movement and the Supreme Court (2015).
  3. See infra Part I. We use the phrase “rights for nature” and “nature’s rights” interchangeably throughout this Article.
  4. See, e.g., Roger Hallam, Common Sense for the 21st Century: Only Nonviolent Rebellion Can Now Stop Climate Breakdown and Social Collapse (2019).
  5. See, e.g., David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (2017); infra Section IV.A.
  6. Other scholars have raised a number of general problems with substantive environmental rights. See, e.g., James R. May & Erin Daly, Global Environmental Constitutionalism 59 (2015) (collecting sources critical of constitutionalizing environmental rights); Tim Hayward, Constitutional Environmental Rights 74–75 (2004) (noting that substantive environmental rights might have an atomizing effect as collective demands for justice become fragmented into individual litigation and claims); César Rodríguez-Garavito, A Human Right to a Healthy Environment?, in The Human Right to a Healthy Environment 155, 166 (John H. Knox & Ramin Pejan eds., 2018) (arguing that substantive environmental rights “fall[] short of . . . transformational promises, as the language of rights tends to be more definitive than the complications of implementation warrant”). In this Article, we focus on the subclass of environmental rights that grant cognizable legal rights and remedies to non-human entities, especially aggregates such as species, ecosystems, or rivers.
  7. Cf. Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 Int’l Rev. L. & Econ. 239 (1992) (examining the difficulty of attributing intentionality to collective entities in the context of statutory interpretation).
  8. As is discussed in more detail below, the use of the language of rights does not obviate the need for comparison. See infra Part II. If anything, the notion of legal or moral rights simply makes the notion of comparison more complicated by introducing ideas such as lexical priority. See generally Jeremy Waldron, Rights in Conflict, 99 Ethics 503 (1989) (exploring possibilities of moral reasoning in cases of rights conflict).
  9. For purposes of this Article, we focus on an understanding of nature’s rights that involves biological aggregates such as species. An alternative formulation of nature’s rights could ignore such aggregates and instead deal exclusively with individual organisms. Such a view could largely, or entirely, overlap with the animal welfare perspective promoted by figures such as Peter Singer. See Peter Singer, Animal Liberation (1975). Some efforts have been made to articulate a framework for considering animal welfare in this manner. See, e.g., Alexis Carlier & Nicolas Treich, Directly Valuing Animal Welfare in (Environmental) Economics, 14 Int’l Rev. Env’t & Res. Econ. 113 (2020); Gary E. Varner, Personhood, Ethics, and Animal Cognition: Situating Animals in Hare’s Two Level Utilitarianism (2012). But nature’s rights, at least as it has been articulated so far, generally take as rights bearers aggregates such as species, ecosystems, rivers, and even the totality of nature. This makes them very different from an expanded welfarism that accounts for the pain and pleasures of non-human organisms. See infra notes 93–101 and accompanying text.
  10. By contrast, for ethical systems that embrace animals as worthy of moral consideration, the shared experience of pain and pleasure is a natural starting place for a balancing analysis. See Singer, supra note 8, at 8 (“The capacity for suffering and enjoyment is a prerequisite for having interests at all . . . .”). Of course, profound differences between humans and non-human animals also raise a host of challenges in attempting to make moral judgment in the face of trans-species effects. See Douglas A. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity 195 (2010) (noting a “sense of awe and incomprehension regarding the other’s being”). See generally Matthew Calarco, Zoographies: The Question of the Animal from Heidegger to Derrida (2008) (illustrating difficulties in moral reasoning about animals).
  11. See generally EPA, Guidelines for Preparing Economic Analyses 7-1 (2010) (“Estimating benefits in monetary terms allows the comparison of different types of benefits in the same units, and it allows the calculation of net benefits—the sum of all monetized benefits minus the sum of all monetized costs—so that proposed policy changes can be compared to each other and to the baseline scenario.”).
  12. Id. at 7-6.
  13. Comparisons of effects on various interests need not be quantitative in nature, but to avoid paralysis, the interpretation of the interests implicated by environmental policy cannot imply that those interests are so strongly incommensurable that it is impossible to evaluate policies with diverse effects.
  14. These early struggles do not necessarily mean that courts will never land on a well-founded and workable understanding of nature’s rights. Indeed, one way that nature’s rights provisions could be defended is that they pose the question to courts of how best to articulate the obligations of human societies to the natural world. On this account, at this stage in their development, nature’s rights provisions are not intended to have determinate substantive content. Rather, they initiate a deliberative process involving courts, as well as other social actors, focused on the appropriate relationship between humans and nature. The substantive content will emerge from this process over time. But, inasmuch as the concept of nature’s rights continues to involve intrinsic value placed on biological aggregates such as species, ecosystems, or nature itself, it will face the challenges raised in Parts II and III below.
  15. We draw a sharp distinction between nature’s rights and animal rights. See supra note 8. Under the former, biological aggregates of various sorts—including species, ecosystems, rivers, landscapes, or all of nature—are understood as having rights or interests. Under the latter, individual organisms (typically animals) are understood as having rights or interests. Our critique is focused on nature’s rights and leaves to the side the question of whether and how the rights, interests, or well-being of individual organisms could or should be considered when evaluating the desirability of environmental policy.
  16. See Kevin L. Cope, Cosette D. Creamer & Mila Versteeg, Empirical Studies of Human Rights Law, 15 Ann. Rev. L. & Soc. Sci. 155, 171 (2019) (summarizing relevant research); Georg Vanberg, Substance vs. Procedure: Constitutional Enforcement and Constitutional Choice, 80 J. Econ. Behav. & Org. 309, 317 (2011). See generally Adam S. Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference?, 60 Am. J. Pol. Sci. 575 (2016) (providing an in-depth empirical examination of the effectiveness of constitutional rights).
  17. As is discussed below, we borrow from Raz to treat nature’s rights as implying that entities of some kind are the bearers of interests of sufficient moral weight to justify assigning a duty to some other. See Joseph Raz, The Morality of Freedom 166 (1988). For our purposes, we set aside the additional complications associated with legal or moral reasoning about rights, and instead assume that if the underlying interests can be articulated in a meaningful way, then those additional difficulties can be addressed. See infra Part II.
  18. The distinction between a bottom-up and a top-down understanding of nature’s rights tracks the concepts of biocentrism and ecocentrism from the environmental ethics literature. See Dale Jamieson, Ethics and the Environment: An Introduction 145–53 (2008).
  19. See generally May & Daly, supra note 5 (examining trends in constitutional discourse on environmental rights).
  20. See generally David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment 45–77, 117–65, 192–231 (2012) (discussing the issue of enforceability and examining the use of environmental rights in Latin America, Africa, and Europe).
  21. See U.N. Secretary-General, Harmony with Nature, U.N. Doc. A/71/266 (Aug. 1, 2016); U.N. Secretary-General, Harmony with Nature, U.N. Doc. A/70/268 (Aug. 4, 2015).
  22. See generally Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) (dismissing a substantive due process challenge against U.S. government inaction on climate change for lack of standing). There is also a movement in the United States toward the adoption of nature’s rights at the municipal level. See generally Marsha Jones Moutrie, The Rights of Nature Movement in the United States, 10 Env’t & Earth L.J. 5 (2020) (surveying and praising local nature’s rights campaigns).
  23. See generally Boyd, supra note 4.
  24. See, e.g., Chris Jeffords & Lanse Minkler, Do Constitutions Matter? The Effects of Constitutional Environmental Rights Provisions on Environmental Outcomes, 69 Kyklos 294 (2016).
  25. These include citizen-suit provisions in the Clean Water Act, 33 U.S.C. § 1365 (2018), and the Clean Air Act, 42 U.S.C. § 7604; the requirements of environmental assessment in the National Environmental Policy Act, 42 U.S.C. § 4321; and provisions concerning the listing and protection of species in the Endangered Species Act, 16 U.S.C. § 1540. There are also important differences between citizen-suit provisions and environmental rights. The former are, in essence, an enforcement mechanism, whereas the latter create substantive obligations to specific entities. That is why judgments in such citizen-suit cases are rendered to the U.S. Treasury rather than as damages to the plaintiff.
  26. See generally Boyd, supra note 19 at 299 (link to online appendix of constitutional provisions related to environmental rights). Boyd’s The Environmental Rights Revolution uses online appendices. The appendix above can be found at https://open.library.ubc.ca/cIRcle/‌collections/ubcpress/641/items/1.0058133 [https://perma.cc/5HJZ-VXUX].
  27. Id.
  28. Constitution of the Republic of Ecuador, Oct. 20, 2008. The right to nature is one of several environmental rights that are recognized in the Ecuadorian constitution—others include a right to water, id. art. 12, and a right to a healthy environment, id. arts. 14, 66.
  29. Id. art. 71.
  30. Id. arts. 72, 73.
  31. Id. art. 11.
  32. Id. art. 71. But see Michelle P. Bassi, La Naturaleza O Pacha Mama de Ecuador: What Doctrine Should Grant Trees Standing?, 11 Or. Rev. Int’l L. 461, 464 (2009) (arguing that Ecuador’s constitution is unclear about the requirements for standing).
  33. There are three provisions in the Constitution related to this statement:Article 11.5. In terms of rights and constitutional guarantees, public, administrative or judicial servants must abide by the most favorable interpretation of their effective force.

    Article 73. The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles.

    Article 396. The State shall adopt timely policies and measures to avoid adverse environmental impacts where there is certainty about the damage. In the case of doubt about the environmental impact stemming from a deed or omission, although there is no scientific evidence of the damage, the State shall adopt effective and timely measures of protection.

  34. May & Daly, supra note 5, at 255, 344 (reviewing the countries that had recognized rights or duties to nature as of 2015).
  35. Ley de Derechos de la Madre Tierra [Law of the Rights of Mother Earth] No. 71 (2010) (Bol.); see also Brandon Keim, Nature to Get Legal Rights in Bolivia, Wired (Apr. 18, 2011), https://www.wired.com/2011/04/legal-rights-nature-bolivia/ [https://perma.cc/HZ3G-3HL4].
  36. Ley de Derechos de la Madre Tierra [Law of the Rights of Mother Earth] No. 71, art. 3 (2010) (Bol.) (translation by the author).
  37. Id. art. 7; Boyd, supra note 19, at 126; see also John Vidal, Bolivia Enshrines Natural World’s Rights with Equal Status for Mother Earth, Guardian (Apr. 10, 2011), https://www.theguardian.com/environment/2011/apr/10/bolivia-enshrines-natural-worlds-rights [https://perma.cc/7E4V-RZJM].
  38. Ley De Derechos de la Madre Tierra [Law of The Rights of Mother Earth] No. 71, art. 10 (2010) (Bol.); Maria Antonia Tigre, Implementing Constitutional Environmental Rights in the Amazon Rainforest, in Implementing Environmental Constitutionalism: Current Global Challenges 75 (Erin Daly & James R. May eds., 2018). To date, no Defensoría de la Madre Tierra office has been created. Tigre argues that the failure to fill the new office indicates that “the rights are more symbolic rather than practical.” Id. But see Boyd, supra note 19, at 140 (referring to two 2010 cases in which the Constitutional Court of Bolivia referred to the right to a healthy environment and concluded that it includes the right to potable water).
  39. National Environment Act (2019), § 4 (Uganda), available at http://files.‌harmony‌withnatureun.org/uploads/upload834.pdf [https://perma.cc/B54A-CTHT].
  40. Assemblée National [National Assembly], Amendment CL786, du 22 juin 2018 (Fr.), https://www.assemblee-nationale.fr/dyn/15/amendements/0911/CION_LOIS/CL786.pdf [https://perma.cc/6R6D-7LUM] (rejected amendment).
  41. U.N. Secretary-General, Harmony with Nature, ¶ 32, U.N. Doc. A/72/175 (July 19, 2017) (describing the rights of nature provisions included in Article 13 of the constitution of Mexico City and Article 2 of the constitution of the State of Guerrero).
  42. Ciudad de Santa Fe, Santa Fe, Ordenanza No. 12541 (30 de agosto del 2018) (Arg.), https://www.concejosantafe.gov.ar/Legislacion/ordenanzas/ORDE_12541.pdf [https://perma.cc/D94Q-LZB2].
  43. Altera o Art. 133, de 12 de novembro de 2019, Diário Oficial Eletrônico Do Município de Florianópolis [DOF] de 20-11-2019 (Braz.).
  44. Lei No. 878/2018, de 20 de dezembro de 2018, Diário Oficial Eletrônico Dos Municípios de Pernambuco [DOP], de 04-02-2019 (Braz.).
  45. Altera o Art. 1 o decreto No. 001/2017, de 21 de dezembro de 2017, Diário Oficial Eletrônico Dos Municípios de Pernambuco [DOP], de 08-03-2018 (Braz.).
  46. Pittsburgh, Pa., Code of Ordinances art. 1, § 104 (2011); Santa Monica, Cal., Mun. Code ch. 12 (2019); Santa Monica, Cal., Mun. Code ch. 7.18 (2018); Santa Monica, Cal., Mun. Code ch. 4.75 (2013) (repealed and reinstated as chapter 12 in 2019).
  47. See Santa Monica Mun. Code ch. 12; Santa Monica Mun. Code ch. 7.18; Santa Monica Mun. Code ch. 4.75 (repealed and reinstated as chapter 12 in 2019).
  48. White Earth, Minn., Ordinance to Establish Rights of Manoomin on White Earth Reservation and Throughout 1855 Ceded Territory § 1(a) (Jan. 11, 2019) (codifying the right of manoomin rice to “pure water and freshwater habitat; the right to a healthy climate system and a natural environment free from human-caused global warming impacts and emissions” and more).
  49. Mountain Lake Park, Md., Ordinance No. 2011-01 (Apr. 15, 2011) (regulating the extraction of natural gas within the town of Mountain Lake Park).
  50. Mora County, N.M., Ordinance 2013-01 (Apr. 29, 2013) (establishing a local bill of rights that protects the natural sources of water from damage related to the extraction of oil, natural gas, and other hydrocarbons).
  51. Wales, N.Y., Local Law No. 3-2011, § 4(b) (2011) (establishing “Rights of Natural Communities” wherein “[e]cosystems and natural communities possess the right to exist and flourish within the Town”).
  52. Broadview Heights, Ohio, Ordinance No. 115-12, § 1 (Sept. 4, 2012) (“Natural communities and ecosystems . . . possess inalienable and fundamental rights to exist and flourish within The City of Broadview Heights. Residents of the City shall possess legal standing to enforce those rights on behalf of those natural communities and ecosystems.”); see also Yellow Springs, Ohio, Ordinance 2012-17, ch. 878, § 878.04 (2012) (“Ecosystems and natural communities possess the right to exist and flourish within the Village.”); Toledo, Ohio, Mun. Code ch. XVII, § 254(a) (2019) (establishing the rights of Lake Erie Ecosystem “to exist, flourish, and naturally evolve”), invalidated by Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d 551 (N.D. Ohio 2020).
  53. Some local ordinances grant rights to nature. See, e.g., Licking Township, Pa., Ordinance Protecting the Right of the Community to Natural Water Sources Within Licking Township § 3.5 (2010); Packer Township, Pa., Ordinance to Protect the Health, Safety, and General Welfare of the Citizens and Environment of Packer Township § 7.2 (2008); Mahanoy Township, Pa., Ordinance 2008-2, § 7.14 (Feb. 21, 2008). Some grant legal standing to residents to enforce rights on behalf of natural communities and ecosystems. See, e.g., Pittsburgh, Pa., Code § 618.03(b) (2010); Forest Hills, Pa., Ordinance No. 1017, § 3(b) (Oct. 19, 2011); West Homestead, Pa., Ordinance No. 659, § 3(b) (May 10, 2011). Other ordinances establish that natural communities shall be considered to be “persons.” See Tamaqua Borough, Pa., Ordinance No. 612, § 7.6 (Sept. 19, 2006).
  54. Halifax, Va., Code art. VII, § 30-156.7 (Feb. 7, 2008) (granting inalienable and fundamental rights to nature to exist and flourish).
  55. Newfield, N.J., Town of Newfield Water Ordinance § 5.1 (Feb. 10, 2009) (proposing an ordinance to grant natural communities and ecosystems inalienable and fundamental rights to exist and flourish).
  56. Nottingham, N.H., Nottingham Water Rights & Self Government Ordinance § 5.1 (Mar. 15, 2008).
  57. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, §§ 14–15 (N.Z.).
  58. Id. § 69.
  59. See id. §§ 18–20 (explaining the function of this office is to “act and speak for and on behalf of [the Whanganui River],” to “promote and protect [its] health and well-being,” to perform “landowner functions” with respect to the “land vested in [it],” to administer the commission charged with deciding application for fishing and catchment activities, and to administer a related fund). The Te Pou Tupua is comprised by appointing one member of the Maori Tribe and one member of the government.
  60. Ngā Iwi o Taranaki and the Crown: Record of Understanding for Mount Taranaki, Pouākai and the Kaitake Ranges 2017, § 5 (N.Z.).
  61. Writ Petition (PIL) No. 126 of 2014 ¶ 19, Salim v. Uttarakhand (2017) (India).
  62. Writ Petition (PIL) No. 140 of 2015 ¶ 2, Miglani v. Uttarakhand (2017) (India).
  63. Members of India’s environmental community have reacted with skepticism towards the court’s innovation. See, e.g., Omair Ahmad, Indian Court Awards Legal Rights of a Person to Entire Ecosystem, Climate Home News (Apr. 3, 2017), http://www.climatechangenews.com/‌2017/04/03/indian-court-awards-legal-rights-person-nature/ [https://perma.cc/9QXM-5J3R]; Indian Court Grants Himalayan Glaciers Status of ‘Living Entities,’ Dawn (Apr. 1, 2017), https://www.dawn.com/news/1324199/indian-court-grants-himalayan-glaciers-status-of-living-entities [https://perma.cc/M969-CLTL]. The Supreme Court of India ultimately ruled that the Ganges and Yamuna Rivers cannot be viewed as living entities. See India’s Ganges and Yamuna Rivers Are ‘Not Living Entities,’ BBC News (July 7, 2017), https://www.bbc.com/news/world-asia-india-40537701 [https://perma.cc/88ZV-JSL5].
  64. Writ Petition (PIL) No. 43 of 2014 ¶ 98, Bhatt v. India (2018) (India).
  65. Sebastian Bechtel, Legal Rights of Rivers—An International Trend?, Client Earth (Mar. 13, 2019), https://www.clientearth.org/legal-rights-of-rivers-an-international-trend/ [https://perma.cc/J4UW-9CVJ]; U.N. Secretary-General, Harmony with Nature, ¶ 23, U.N. Doc. A/74/236 (July 26, 2019).
  66. Corte Constitucional [C.C.] [Constitutional Court], noviembre 10, 2016, M.P: Jorge Iván Palacio Palacio, Sentencia T-622/16 (Colom.). The judge who wrote the majority opinion in this case noted the influence of the prior decisions in India on his reasoning: “[He] said that in an event that the Court organized in October 2016, he listened attentively to the speech given by a judge from India, who explained that ‘our brothers the trees and our sisters the flowers’ should be subject to rights.” He went on to say: “Thus, when the case came to the Court, I knew what I had to do: Nature has a right not be polluted, a right not to be destroyed, and a right to be rationally used.” See Jorge Iván Palacio: El Centinela del Río Atrato, El Espectador (Dec. 3, 2017), https://www.elespectador.com/noticias/judicial/jorge-ivan-palacio-el-centinela-del-rio-atrato-articulo-726304 [https://perma.cc/EXP3-K7U2] (translation by the author).
  67. Sentencia T-622/16, ¶ 5.3, 5.4, 9.22 (Colom.).
  68. Ana Lucía Maya-Aguirre, Implementing Environmental Constitutionalism in Colombia: Tensions Between Public Policy and Decisions of the Constitutional Court, in Implementing Environmental Constitutionalism: Current Global Challenges 143, 157 (Erin Daly & James R. May eds., 2018).
  69. Sentencia T-622/16, ¶ 9.32 (Colom.).
  70. Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. Lab. abril 5, 2018, M.P: Luis Armando Tolosa Villabona, STC4360-2018, 48 (Colom.).
  71. Jurisdicción Especial Para La Paz [Special Jurisdiction for Peace], Sala. Reconocimiento. noviembre 12, 2019, M: Belkis Florentina Izquierdo Torres & Ana Manuela Ochoa Arias, Caso No. 02 de 2018, 30 (Colom.).
  72. Redacción Nacional, Río Quindío, Otro Cuerpo Fluvial que Es Sujeto de Derechos [Quindío River, Another River Body that Is Subject to Rights], El Nuevo Siglo (Dec. 8, 2019), https://www.elnuevosiglo.com.co/articulos/12-2019-rio-quindio-otro-cuerpo-fluvial-que-es-sujeto-de-derechos [https://perma.cc/B9XQ-QC3Z].
  73. Juzgados Primero Penal del Circuito con Funciones de Conocimiento de Neiva-Huila [Juzg. Circ.] [First Criminal Court of the Circuit with Functions of Knowledge of Neiva-Huila], octubre 24, 2019, J: Victor Alcides Garzon Barrios, Sentencia de Tutela de Primera Instancia No. 071, 35 (Colom.).
  74. Tribunal Superior de Medellín [T. Sup.], Sala. Civil. junio 17, 2019, M: Juan Carlos Soso Londoño, Sentencia No. 38, Tribunal Superior de Medllín [T.S.M.] 43 (Colom.).
  75. Tribunal Administrativo del Tolima [T. Admtivos] [Administrative Superior Court], Sala. Civil. mayo 30, 2019, M.P: José Andrés Rojas Villa, Sentencia 73001-23-00-000-2011-00611-00, 149 (Colom.).
  76. Juzgado Único Civil Municipal la Plata—Huila [Juz. Mun.] [Municipal Civil Court], marzo 19, 2019, J: Juan Carlos Clavijo González, 41-396-40-03-001-2019-00114-00 (Colom.).
  77. Tribunal Administrativo del Boyocá [T. Admtivos] [Administrative Superior Court], Sala. de Decisión agosto 9, 2018, M.P: Clara Elisa Cifuentes Ortiz, Expediente 15238 3333 002 2018 00016 01, 67–68) (Colom.).
  78. Corte Suprema de Justicia [C.S.J.] [Supreme Court], Sala. de Casación Civil julio 26, 2017, M.P: Luis Armando Tolosa Villabona, AHC4806-2017 (No. l7001-22-13-000-2017-00468-02, p. 34–35) (Colom.).
  79. Medio Ambiente y Derechos Humanos [The Environment and Human Rights], Opinión Consultiva [Advisory Opinion] OC-23/17, Corte Interamericana de Derechos Humanos [Inter-Am. Ct. H.R.] (ser. A) ¶ 62, n.100 (15 de noviembre de 2017); see also Nicolás Carrillo-Santarelli, The Politics Behind the Latest Advisory Opinions of the Inter-American Court of Human Rights, Int’l J. Const. L. Blog, Feb. 24, 2018, http://www.iconnectblog.com‌/2018/02/the-politics-behind-the-latest-advisory-opinions-of-the-inter-american-court-of-human-rights/ [https://perma.cc/X9MY-A74Z] (remarking on the political aspects of several advisory opinions published by the Inter-American Court of Human Rights, including OC-23/17).
  80. Medio Ambiente y Derechos Humanos [The Environment and Human Rights], Opinión Consultiva [Advisory Opinion] OC-23/17, Corte Interamericana de Derechos Humanos [Inter-Am. Ct. H.R.] (ser. A), ¶ 62 (15 de noviembre de 2017) (emphasis added) (translation by the author).
  81. The Community Environmental Legal Defense Fund describes itself as “building a movement for . . . the Rights of Nature to advance democratic, economic, social, and environmental rights—building upward from the grassroots to the state, federal, and international level.” Community Environmental Legal Defense Fund, CELDF Statement on Orange County, FL ‘Rights of Nature’ Law (Nov. 4, 2020), https://celdf.org/2020/11/celdf-statement-on-orange-county-fl-rights-of-nature-law/ [https://perma.cc/423D-HJSV]. The Earth Law Center states that it “seek[s] legal rights for ecosystems and species” throughout the world. Earth Law Center, Community Toolkit for Rights of Nature 22, https://static1.squarespace.com/static/55914fd1e4b01fb0b851a814/t/5c8abd994192021c8d560fcb/1552596381584/Community+Toolkit+for+Rights+of+Nature.pdf [https://perma.cc/W7NM-L5RW].
  82. Maria Akchurin, Constructing the Rights of Nature: Constitutional Reform, Mobilization, and Environmental Protection in Ecuador, 40 Law & Soc. Inquiry 937, 952 (2015).
  83. See U.N. Secretary-General, Harmony with Nature: Note by the Secretary-General, ¶ 5, U.N. Doc. A/71/266 (Aug. 1, 2016); U.N. Secretary-General, Harmony with Nature: Rep. of the Secretary-General, ¶ 4, U.N. Doc. A/70/268 (Aug. 4, 2015).
  84. U.N. Secretary-General, Harmony with Nature: Rep. of the Secretary-General, ¶ 4, U.N. Doc. A/69/322 (Aug. 18, 2014).
  85. U.N. Secretary-General, Harmony with Nature: Rep. of the Secretary-General, ¶ 41, U.N. Doc. A/72/175 (July 19, 2017).
  86. See generally Out of the Mainstream: Water Rights, Politics and Identity (Rutgerd Boelens, David Getches & Armando Guevara-Gil eds., 2010) (explaining the impact of indigenous movements on Latin American water management).
  87. Bryant Rousseau, In New Zealand, Lands and Rivers Can Be People (Legally Speaking), N.Y. Times (July 13, 2016), https://www.nytimes.com/2016/07/14/world/what-in-the-world/in-new-zealand-lands-and-rivers-can-be-people-legally-speaking.html [https://perma.cc/C28W-N7R3].
  88. John Vidal, Bolivia Enshrines Natural World’s Rights with Equal Status for Mother Earth, Guardian (Apr. 10, 2011), https://www.theguardian.com/environment/2011/apr/10/bolivia-enshrines-natural-worlds-rights [https://perma.cc/6KRA-ZG6Z]; Craig M. Kauffman & Pamela L. Martin, Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand, 18 Glob. Env’t Pol. 43, 55 (2018).
  89. See David R. Boyd, Recognizing the Rights of Nature: Lofty Rhetoric or Legal Revolution?, 32 Nat. Res. & Env’t 13, 17 (2018). See generally Boyd, supra note 4 (offering a defense of nature’s rights for a broader audience).
  90. See, e.g., Jan G. Laitos, How Science Has Influenced, but Should Now Determine, Environmental Policy, 43 Wm. & Mary Env’t L. & Pol’y Rev. 759, 788 (2019); Oliver A. Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Env’t L.J. 1, 41–42 (2017); Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Christina Voigt ed., 2013) (collecting essays exploring broad environmental rights). The origin of the notion of nature’s rights can be found in the legal academic literature in Professor Christopher D. Stone’s famous essay, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450, 456 (1972); Cormac Cullinan, Wild Law 157–59 (2d ed. 2011) (advocating radical restructuring of law and governance to account for natural systems). See generally Susan Emmenegger & Axel Tschentscher, Taking Nature’s Rights Seriously: The Long Way to Biocentrism in Environmental Law, 6 Geo. Int’l Env’t L. Rev. 545, 573 (1994) (“Acknowledging nature’s rights would make the respective natural entity a subject whereas it is merely an object of human considerations in the context of duties towards nature.”).
  91. See, e.g., Carolina Valladares & Rutgerd Boelens, Mining for Mother Earth: Governmentalities, Sacred Waters and Nature’s Rights in Ecuador, 100 Geoforum 68, 68–69 (2019) (discussing the relationship between nature’s rights and mining); Eden Kinkaid, “Rights of Nature” in Translation: Assemblage Geographies, Boundary Objects, and Translocal Social Movements, 44 Transactions Inst. Brit. Geographers 555 (2019) (considering rights of nature as “a boundary object connecting translocal assemblages of environmental governance through acts of translation”); Florent Kohler, Timothy G. Holland, Janne Sakari Kotiaho, Maylis Desrousseaux & Matthew D. Potts, Embracing Diverse Worldviews to Share Planet Earth, 33 Conservation Biology 1014, 1014–16 (2019) (arguing for nature’s rights to preserve nature); Kelly D. Alley, River Goddesses, Personhood and Rights of Nature: Implications for Spiritual Ecology, 10 Religions 502 (2019) (examining rights for nature through a religious lens); Mariana Chilton & Sonya Jones, The Rights of Nature and the Future of Public Health, 110 Am. J. Pub. Health 459 (2020) (advocating for rights of nature to mitigate environmental impacts and discrepancies on public health); Guillaume Chapron, Yaffa Epstein & José Vicente López-Bao, A Rights Revolution for Nature, 363 Science 1392 (2019).
  92. Intersecting topics include literatures on rights, rights conflicts, incommensurability, group rights, and animal welfare.
  93. Cf. Richard Schragger & Micah Schwartzman, Some Realism about Corporate Rights 345, 347, in The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders & Zoë Robinson eds., 2016) (arguing that there is no need to settle disputes concerning ontological status of corporations to reason about group rights). For purposes of this Article, we proceed under Schragger and Schwartzman’s view that ontological claims about entities need not be settled to engage in pragmatic reasoning about legal rights.
  94. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948).
  95. Paul W. Taylor, Respect for Nature: A Theory of Environmental Ethics 119–29 (1986).
  96. See supra Part I.
  97. See Akchurin, supra note 81.
  98. Stone, supra note 89, at 456.
  99. Cf. Christian List & Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents 182 (2011) (citations omitted) (adopting “‘normative individualism’ . . . : the view that something [including extending legal rights to groups] is good only if it is good for individual human[s] or, more generally, sentient beings”).
  100. Stone, supra note 89, at 456 n.26.
  101. See generally Justin Farrell, The Battle for Yellowstone: Morality and the Sacred Roots of Environmental Conflict (2015) (examining a host of different sources of conflict over the management of a complex ecosystem with a large number of interested stakeholders).
  102. See generally Tom Campbell, Rights: A Critical Introduction (2006) (summarizing various theories of rights and their relation to legal rights); see also Leif Wenar, Rights, The Stan. Encyc. of Phil. (Edward N. Zalta ed., 2015), https://plato.stanford.edu/archives/‌fall2015/‌entries/rights/ [https://perma.cc/5TME-FMZQ] (describing the nature of rights, categorizing rights according to shared attributes, and exploring sub-categories of moral and legal rights).
  103. See Waldron, supra note 7, at 508. Lexical priority means that certain claims must be satisfied altogether before other claims. See, e.g., John Rawls, Justice as Fairness: Political Not Metaphysical, 14 Phil. & Pub. Affs. 223, 227–28 (1985) (stating two principles of justice where “the first is given priority over the second”).
  104. See Robert Nozick, Anarchy, State, and Utopia 29 (1974).
  105. Ronald Dworkin, Taking Rights Seriously 6 (1977).
  106. For a discussion of rights discourse in the United States, see, e.g., Richard A. Primus, The American Language of Rights (1999); Carl Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (1999); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991). For a critique of the discourse of rights at a global level, see Eric A. Posner, The Twilight of Human Rights Law (2014).
  107. For general critiques of rights reasoning in the context of human rights, see Alasdair MacIntyre, After Virtue 6–21 (2d ed. 1984).
  108. See generally Waldron, supra note 7 (exploring the moral difficulties that occur when rights conflict with one another).
  109. See generally Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello, Jr. & Robin Fretwell Wilson eds., 2008) (discussing conflicting liberties in the context of same-sex marriage and religious freedom). See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1753–54 (2020) (“[T]he employers fear that complying with Title VII’s requirement [not to engage in employment discrimination against homosexual or transgender people] . . . may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”).
  110. For additional examples of policy choices that present conflicts within the domain of nature, see Jamieson, supra note 17, at 168–80.
  111. 77 Fed. Reg. 9303 (Feb. 16, 2012).
  112. EPA, Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards (2011).
  113. Id.
  114. Id.
  115. Timothy P. Robinson et al., Mapping the Global Distribution of Livestock, PLOS One, May 29, 2014, at 1, https://journals.plos.org/plosone/article?id=10.1371/journal.pone.‌0096084#‌pone-0096084-g002 [https://perma.cc/EN4R-2GPX].
  116. See generally Jared Prunty & Kevin J. Apple, Painfully Aware: The Effects of Dissonance on Attitudes Toward Factory Farming, 26 Anthrozoös 265 (2013) (discussing conflicting public attitudes concerning animal welfare and commercial farming practices); Ruth Harrison, Animal Machines: The New Factory Farming Industry (1964) (providing moral arguments).
  117. It has sometimes been argued that the profit motive is adequate to provide for animal welfare, because “farm animals which receive better care will be more productive.” See Jayson L. Lusk & F. Bailey Norwood, Animal Welfare Economics, 33 Applied Econ. Persps. & Pol’y 463, 464 (2011) (explaining but not adopting this view). Indeed, a purely profit-motivated firm will invest some resources into animal welfare and will not engage in gratuitously inhuman treatment. But, as long as there are increasing returns to animal welfare from further investments beyond what is profit maximizing—a highly likely situation—then profitability and protections for animal well-being will part ways. See id.
  118. National Pollutant Discharge Elimination System, 79 Fed. Reg. 48,300 (Aug. 15, 2014).
  119. Id. at 48,318–21.
  120. EPA, Benefits Analysis for the Final Section 316(b) Existing Facilities Rule (May 2014), https://www.epa.gov/sites/production/files/2015-05/documents/cooling-water_phase-4_benefits_2014.pdf [https://perma.cc/9JK9-66H3].
  121. Joe Ryan, NRG’s Massive California Solar Plant Finally Making Enough Power, Bloomberg (Feb. 2, 2017), https://www.bloomberg.com/news/articles/2017-02-01/nrg-s-massive-california-solar-plant-finally-making-enough-power [https://perma.cc/URX3-5ABV]; Cal. Energy Comm’n, California Solar Energy Statistics and Data, https://ww2.energy.ca.gov/almanac/renewables_data/solar/index_cms.php [https://perma.cc/N7N5-HCWG].
  122. Avoided emissions calculations are tricky. The values here are a back-of-the-envelope calculation using the following information: Avoided Emissions Calculator, https://www.irena.org/climatechange/Avoided-Emissions-Calculator [https://perma.cc/23W4-MJB6]. To arrive at our estimate, we set the country entry to “United States of America,” the technology entry to “concentrated solar power,” and the year entry to “2016.” Using these inputs, IRENA reports that 3,701 GWh were generated in 2016 by concentrated solar power. According to the above estimates, Ivanpah generated about 3,500 GWh between 2014 and 2020. IRENA reports that the United States avoided an estimated 2.832 million tons of carbon dioxide when producing this much energy using concentrated solar power. In order to account for any confounding variables, we cut this figure in half and rounded down to provide a conservative, lower-bound estimate of avoided emissions.
  123. See, e.g., Manish Ram et al., LUT University Energy Watch Group, Global Energy System Based on 100% Renewable Energy—Power, Heat, Transport and Desalination Sectors 16 (Mar. 2019) (offering a policy scenario in which installed solar electricity generating capacity is nearly ten times greater by 2050 than current (2015) installed capacity from all energy sources).
  124. Bureau of Land Mgmt., California Desert Conservation Area Plan Amendment/Final Environmental Impact Statement for Ivanpah Solar Electric Generating System 1–23 (2010).
  125. Louis Sahagun, This Mojave Desert Solar Plant Kills 6,000 Birds a Year. Here’s Why That Won’t Change Any Time Soon, L.A. Times (Sept. 2, 2016), https://www.latimes.com/local/california/la-me-solar-bird-deaths-20160831-snap-story.html [https://perma.cc/A8NA-JZLH].
  126. See Hillel Steiner, The Structure of a Set of Compossible Rights, 74 J. Phil. 767, 768 (1977).
  127. Keith Dowding & Martin Van Hees, The Construction of Rights, 97 Am. Pol. Sci. Rev. 281, 292 (2003) (Steiner’s account leaves a set of rights that “are nonexistent or vanishingly small”).
  128. See Alan Gewirth, Are There Any Absolute Rights?, 31 Phil. Q. 1, 3 (1981).
  129. John Oberdiek, Specifying Rights Out of Necessity, 28 Oxford J.L. Stud. 127, 128 (2008) (arguing rights carry limiting specifications); Russ Shafer-Landau, Specifying Absolute Rights, 37 Ariz. L. Rev. 209 (1995) (analyzing arguments about specifications on rights).
  130. See Waldron, supra note 7, at 516–19.
  131. In the context of constitutional adjudication, courts (especially outside the United States) often make recourse to the notion of “proportionality” in cases of rights conflict. See Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L.J. 3094, 3096, 3110–21 (2015). Jackson argues that the concept of “‘proportionality as such’ . . . differs from ‘balancing’ tests that tend to focus primarily on quantification of net social good” because it is part of a “structured, sequenced . . . analysis” that “as a whole, prioritizes the right.” Id. at 3099–100. This might be thought of as a mix of a pure balancing approach with one that involves some prioritization mechanism.
  132. See generally Matthew D. Adler, Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis 158–70 (2012) (examining “the range of accounts of well-being proposed within the philosophical literature”).
  133. See generally EPA, supra note 10 (describing EPA’s approach to evaluating environmental policy using cost-benefit analysis).
  134. Chapron, Epstein & López-Bao, supra note 90, at 1392.
  135. Id.
  136. This move is correctly controversial. For example, it may be that it is easier to make such comparisons under a consequentialist view, which evaluates choices based on their outcomes. But some may object to consequentialism, either generally or in the context of nature’s rights—for example, because it fails to take seriously the obligations of individuals to act (or not act) in particular ways, which is distinct from the obligation to bring about (or not) certain outcomes. See generally F.M. Kamm, Non-Consequentialism, the Person as an End-in-Itself, and the Significance of Status, 21 Phil. & Pub. Affs. 354, 358–59 (1992) (“I believe that options [to not maximize overall best consequences] are justified by the view that persons are not mere means to the end of the best state of affairs, but ends-in-themselves, having a point even if they do not serve the best consequences.”). We put these critiques to one side, under the stipulation that welfare economic tools (or others that are associated with consequentialism) could be applied to reasoning concerning nature’s rights if they facilitate comparison between policy options with complex effects on the world. If this assumption does not hold, then nature’s rights face a range of additional difficulties.
  137. For the classic formulation of the problem, see Lionel Robbins, An Essay on the Nature and Significance of Economic Science 139–40 (2d ed. 1935) (arguing that interpersonal utility comparisons are outside the boundaries of economic science altogether). See generally Ken Binmore, Interpersonal Comparison of Utility, in Oxford Handbook of Philosophy of Economics 540, 547–50 (Don Ross & Harold Kincaid eds., 2009) (providing overview); Marc Fleurbaey & Peter J. Hammond, Interpersonally Comparable Utility, in 2 Handbook of Utility Theory 1179, 1181 (Salvador Barberà, Peter J. Hammond & Christian Seidl eds., 2004) (same); Interpersonal Comparisons of Well-Being (Jon Elster & John E. Roemer eds., 1991) (collecting essays exploring various perspectives).
  138. See generally The Oxford Handbook of Well-Being and Public Policy (Matthew D. Adler & Marc Fleurbaey eds., 2016) (collecting diverse views).
  139. Binmore, supra note 136, at 541.
  140. See Lionel Robbins, Interpersonal Comparisons of Utility: A Comment, 48 Econ. J. 635, 637–38 (1938).
  141. John Rawls, A Theory of Justice 26–27 (rev. ed. 1999).
  142. Id. at 11.
  143. See id. at 13. John Harsanyi argues that Rawls places too much emphasis on worst-case scenarios. See John C. Harsanyi, Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls’s Theory, 69 Am. Pol. Sci. Rev. 594, 595–97 (1975).
  144. EPA, Guidelines for Preparing Economic Analyses A-3 (2010).
  145. The classic papers setting out the Kaldor-Hicks framework are: John R. Hicks, The Foundations of Welfare Economics, 49 Econ. J. 696 (1939) and Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 Econ. J. 549 (1939).
  146. See Matthew D. Adler & Eric A. Posner, New Foundations for Cost-Benefit Analysis 10–12 (2006) For an examination of the theoretical justification of using cost-benefit analysis as a policy tool, see generally id.
  147. See generally Tibor Scitovsky, A Note on Welfare Propositions in Economics, in Readings in Welfare Economics 390, 400–01 (Kenneth J. Arrow & Tibor Scitovsky eds., 1969) (introducing problem of preference cycles).
  148. See Adler, supra note 131, at 187–92; John C. Harsanyi, Cardinal Welfare, Individualistic Ethics, and Interpersonal Comparisons of Utility, 63 J. Pol. Econ. 309, 316–21 (1955) (offering account of how interpersonal comparisons can be made).
  149. See Daniel Kahneman, Objective Happiness, in Well-Being: The Foundations of Hedonic Psychology (Daniel Kahneman, Ed Diener & Norbert Schwarz eds., 1999). Cf. Paul W. Glimcher, Foundations of Neuroeconomic Analysis (2011) (developing notion of cardinal utility based on observable neurological information).
  150. Adler, supra note 131, at 185–92.
  151. Matthew D. Adler, Extended Preferences, in The Oxford Handbook of Well-Being and Public Policy, supra note 137, at 476, 476.
  152. See Hilary Greaves & Harvey Lederman, Extended Preferences and Interpersonal Comparisons of Well-Being, 96 Phil. & Phenomenological Res. 636, 645 (2018).
  153. EPA supra note 10, at 7-7 to 7-10.
  154. See generally Robert Costanza et al., The Value of the World’s Ecosystem Services and Natural Capital, 387 Nature 253 (1997) (estimating economic value of several ecosystem services, including pollination and nutrient cycling).
  155. Singer, supra note 8.
  156. See Taylor, supra note 94, at 122, 125, 128–29. See generally Nicholas Agar, Biocentrism and the Concept of Life, 108 Ethics 147 (1997) (developing a “continuum” of organisms from humans to “simple living things” that clarifies the degree of moral consideration that ought to be afforded).
  157. Compare J. Baird Callicott, In Defense of the Land Ethic: Essays in Environmental Philosophy (1989) (defending moral consideration of aggregates), with Tom Regan, The Case for Animal Rights 362 (1983) (criticizing as “[e]nvironmental fascism” views that suggest that the interests of individuals be subordinated to those of aggregates).
  158. See, e.g., Paul W. Taylor, The Ethics of Respect for Nature, 3 Env’t Ethics 197, 218 (1981) (“If we accept the biocentric outlook and accordingly adopt the attitude of respect for nature as our ultimate moral attitude, how do we resolve conflicts that arise from our respect for persons in the domain of human ethics and our respect for nature in the domain of environmental ethics? This is a question that cannot adequately be dealt with here.”).
  159. For a useful introduction to the field, see Daniel M. Hausman & Michael S. McPherson, Economic Analysis, Moral Philosophy, and Public Policy (2d ed. 2006).
  160. Making comparisons does not require the stronger relationship of commensurability. For a general discussion of the issue of commensuration in the context of legal decision making (including the adjudication of rights), see a useful symposium issue of the University of Pennsylvania Law Review. Symposium, Law and Incommensurability, 146 U. Pa. L. Rev. 1169 (1998).
  161. The word “individual” derives from the Latin indīviduus, meaning indivisible. See Individual, Oxford English Dictionary (3d ed. 2014). We set aside concerns about personal identity, although there is a vibrant philosophical literature on these questions. See, e.g., Eric T. Olson, The Human Animal: Personal Identity Without Psychology (1999); Marya Schechtman, The Constitution of Selves (1996); Derek Parfit, Reasons and Persons (reprt. 1987); see also Eric T. Olson, Personal Identity, Stan. Encyclopedia Phil. (last updated Sept. 6, 2019), https://plato.stanford.edu/entries/identity-personal/ [https://perma.cc/AVF6-G9M9].
  162. Examples include the U.S. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–44 and the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087.
  163. Susan Milius, The Fuzzy Art of Defining Species, Science News, Nov. 11, 2017, at 22–24; see also Michael Ruse, Biological Species: Natural Kinds, Individuals, or What?, 38 Brit. J. Phil. Sci. 225, 226–27 (1987) (listing four biological concepts of “species”).
  164. See Frank E. Zachos, Species Concepts in Biology 77–96 (2016) (providing an annotated list of thirty-two definitions).
  165. See, e.g., Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 842 (9th Cir. 2003).
  166. For example, the Supreme Court has had an extraordinarily difficult time articulating coherent boundaries around what constitutes the “waters of the United States” for purposes of jurisdiction under the Clean Water Act. See, e.g., Rapanos v. United States, 547 U.S. 715 (2006).
  167. William Miller III, The Hierarchical Structure of Ecosystems: Connections to Evolution, 1 Evolution: Educ. & Outreach 16, 16 (2007).
  168. See Andreas Wilting et al., Planning Tiger Recovery: Understanding Intraspecific Variation for Effective Conservation, 1 Sci. Advances, June 26, 2015, at 1, DOI, 10.1126/sciadv.1400175.
  169. U.S. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–44.
  170. Id. § 1536.
  171. Put aside the fact that there are no wild orangutans or tigers in the United States.
  172. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722, 4722 (Feb. 7, 1996) (“Any interpretation adopted should also be aimed at carrying out the purposes of the Act . . . .”).
  173. Id. at 4723.
  174. Id.
  175. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 59–71 (2001); Amartya Sen, Commodities and Capabilities (Oxford India Paperbacks 1999) (1987).
  176. Callicott argues that the distinction between individuals and collectives is an illusion because “‘individual organisms’ (including human organisms) are . . . ecological collectives.” J. Baird Callicott, How Ecological Collectives Are Morally Considerable, in The Oxford Handbook of Environmental Ethics 113, 113–14 (Stephen M. Gardiner & Allen Thompson eds., 2017). It is true that, as a biological matter, a person is made up of many trillions of human cells in addition to trillions of microorganisms—e.g., bacteria, viruses, protozoa, and fungi—representing hundreds of species. See Peter J. Turnbaugh et al., The Human Microbiome Project, 449 Nature 804, 804–06 (2007) (describing the microbiome and what is known about it). However, although human beings are collectives of a sort, we take it as uncontroversial that the interests of the sub-units can be safely ignored—it would be absurd to grant standing to a person’s gut biota to sue her small intestine over a conflict of resources. It is, perhaps, worth considering why some biological collectives (e.g., individual organisms) have this type of unity that others (e.g., species and ecosystems) lack. Consciousness and subjective experience provide one possible explanation. Indeed, one of the leading theories concerning the neurological basis of consciousness argues that its most basic function is the integration of information that is diffused across the organism. Giulio Tononi, Melanie Boly, Marcello Massimini & Christof Koch, Integrated Information Theory: From Consciousness to Its Physical Substrate, 17 Nature Revs. Neuroscience 450, 452 (2016) (“[T]he content of an experience (information) is integrated within a unitary consciousness.”).
  177. For a popular account of subjective experience of an octopus, see Peter Godfrey-Smith, Other Minds: The Octopus, the Sea, and the Deep Origins of Consciousness 98–106 (1st ed. 2016).
  178. Thomas Nagel, What Is It Like to Be a Bat?, 83 Phil. Rev. 435, 438–40 (1974).
  179. See Jennifer A. Mather, Cephalopod Consciousness: Behavioural Evidence, 17 Consciousness & Cognition 37, 37 (2008).
  180. Lusk & Norwood, supra note 116, at 479–80.
  181. Cf. List & Pettit, supra note 98, at 182 (discussing moral agency in the context of deliberating between groups of people and denying that aggregates have moral interests independent of individuals).
  182. See Babbitt v. Sweet Home Chapter of Cmtys. For a Great Or., 515 U.S. 687, 708 (1995) (holding that the definition of “harm” under the Endangered Species Act could include habitat loss).
  183. Here, correct prices are simply those that would exist in a perfect market.
  184. See, e.g., Harsanyi, supra note 147; Harsanyi, supra note 142.
  185. Rawls, supra 140, at 11.
  186. Id.
  187. As noted by Carlier and Treich, in the original position literature:[P]eople are asked to imagine that they do not know their gender, ethnic background, economic status, class, abilities or talents; they can be slaves, physically [disabled], mentally [disabled] and so forth, but they usually cannot be animals. Many mental barriers are overcome in this thought experiment, but not that of species.

    Carlier & Treich, supra note 8, at 131.

  188. For an account of fairly complex social relationships in the non-human world, see generally Frans de Waal, Chimpanzee Politics: Power and Sex Among Apes (1st U.S. ed. 1982) (studying the social organization of a chimpanzee colony).
  189. Wilfrid Sellars, Empiricism and the Philosophy of Mind 76 (Harv. Univ. Press 1997) (1956) (noting that the “space of reasons” is one “of justifying and being able to justify what one says,” i.e., one that requires quite sophisticated communicative capacities).
  190. Nils Chr. Stenseth, Where Have All the Species Gone? On the Nature of Extinction and the Red Queen Hypothesis, 33 Oikos 196, 196 (1979).
  191. Id. at 197–99, 223.
  192. Id. at 197.
  193. Levi T. Morran, Olivia G. Schmidt, Ian A. Gelarden, Raymond C. Parrish II & Curtis M. Lively, Running with the Red Queen: Host-Parasite Coevolution Selects for Biparental Sex, 333 Science 216, 216 (2011).
  194. We might imagine that transaction costs could create space between an evolutionarily stable equilibrium and the Pareto frontier.
  195. Karen Bradshaw argues that, to a limited degree, non-human animals have been granted some property rights. Karen Bradshaw, Animal Property Rights, 89 Univ. Colo. L. Rev. 809, 823 (2018). But even under a generous interpretation, as a share of the wealth of the world, the portion granted to non-humans is vanishingly small. The question of whether non-humans deserve more is one that sounds in justice and cannot be answered based on the existing state of the law.
  196. Derek Parfit, Equality and Priority, 10 Ratio (n.s.) 202, 213 (1997).
  197. See Rawls, supra note 140, at 13.
  198. See, e.g., Taylor, supra note 157, at 218.
  199. Aldo Leopold, A Sand County Almanac 224–25 (1949).
  200. It is possible that Leopold meant the “biotic community” in local rather than global terms. See id. at 129–32 (understanding ecological effects by “thinking like a mountain”). If so, Leopold’s biotic communities would be akin to other aggregates (such as ecosystems or species) that are discussed above in Part II. For purposes of the discussion that follows, we interpret the biotic community as extending to the global scale.
  201. Individual, Oxford English Dictionary (3d ed. 2014); Charlton T. Lewis & Charles Short, In-dīviduus, A Latin Dictionary (1879), http://www.perseus.tufts.edu/hopper/text?‌doc=‌Per‌seus:‌text:‌1999.04.0060:‌entry=individuus [https://perma.cc/T6KU-XWLE].
  202. J.E. Lovelock, Gaia as Seen Through the Atmosphere, 6 Atmospheric Env’t 579, 579 (1972); James E. Lovelock & Lynn Margulis, Atmospheric Homeostasis by and for the Biosphere: The Gaia Hypothesis, 26 Tellus 2, 3 (1974).
  203. According to Margulis, Gaia “is not an organism” but “an emergent property of interaction among organisms.” She defined Gaia as “the series of interacting ecosystems that compose a single huge ecosystem at the Earth’s surface. Period.” Lynn Margulis, Symbiotic Planet: A New Look at Evolution 119–20 (1998).
  204. See David Abram, The Spell of the Sensuous: Perception and Language in a More-Than-Human World 302 n.62 (1996) (“Whatever the scientific fate of the Gaia hypothesis, . . . [it] ultimately encourages us to speak of the encompassing earth in the manner of our oral ancestors, as an animate, living presence.”).
  205. See Rosaleen Howard-Malverde, “Pachamama Is a Spanish Word”: Linguistic Tension Between Aymara, Quechua, and Spanish in Northern Potosí (Bolivia), 37 Anthropological Linguistics 141, 141–43 (1995).
  206. See, e.g., Dennis McKerlie, Egalitarianism and the Separateness of Persons, 18 Can. J. Phil. 205, 205, 207–08 (1988).
  207. It bears noting that even if the interests of persons are not treated separately, diminishing marginal utility of consumption would justify some level of redistribution in an unequal society.
  208. See, e.g., Adler, supra note 131, at 314–21.
  209. Sarah F. Brosnan & Frans B.M. de Waal, Monkeys Reject Unequal Pay, 425 Nature 297, 297 (2003).
  210. See generally Edward O. Wilson, Sociobiology: The New Synthesis 106–29 (1975) (exploring the biological origins of altruism).
  211. See Brosnan & de Waal, supra note 208, at 297.
  212. The influence of modern humans is particularly strong compared to other species, although that influence emerged gradually over time. If humans are understood as distinct from the biotic community due to this influence, it would raise the question of when, after Homo sapiens became a distinct species, its influence was sufficiently grave that it broke off from the biotic community as a whole.
  213. Many environmental ethicists reject the notion that humans are separate from nature in any fundamental sense. See generally Uncommon Ground: Rethinking the Human Place in Nature (William Cronon ed., 1995) (collection of essays exploring consequences of human-nature connection for environmental law and ethics). Of course, there is a long philosophical tradition that does separate humans from the rest of nature, based on characteristics such as the capacity for reason. Immanuel Kant, Groundwork of the Metaphysics of Morals 37 (Mary Gregor ed. & trans., Cambridge Univ. Press 1998) (1785) (distinguishing between “persons”—rational beings who are ends in themselves—and “things”—non-rational beings that have worth only as means). For a recent example, see George Kateb, Human Dignity (2011) (arguing that humans have a special responsibility of stewardship that other species do not). But such accounts are very much at odds with the one-entity approach, with its holistic emphasis on interdependence and the embeddedness of humans within broader natural systems.
  214. See generally Jedediah Purdy, After Nature: A Politics for the Anthropocene (2015) (exploring implications of pervasive human influence over the environment).
  215. Yinon M. Bar-On, Rob Phillips & Ron Milo, The Biomass Distribution on Earth, 115 Proc. Nat’l Acad. Sci. 6506, 6507–08 (2018).
  216. Elizabeth Pennisi, Plants Outweigh All Other Life on Earth, Sci. Mag. (May 21, 2018), https://www.sciencemag.org/news/2018/05/plants-outweigh-all-other-life-earth [https://perma.cc/S7VD-32J5].
  217. See Z.A. Wendling et al., 2020 Environmental Performance Index 1 (2020), https://epi.yale.edu/downloads/epi2020report20210112.pdf [https://perma.cc/Y54P-8PZX].
  218. Id.
  219. Id.
  220. Id.
  221. The EPI data is available at EPI Downloads, EPI2020 Results, https://epi.yale.edu/downloads [https://perma.cc/9YVK-7YM3].
  222. A principal components analysis of the issue category variables indicates that, although the first component accounts for nearly half the total variance, seven components are needed to account for ninety percent.
  223. Even if there were a single overarching dimension of environmental performance, that would not be the end of the inquiry—the moral basis for using the index to limit human activities would need to be defended.
  224. See Dworkin, supra note 104, at xi.
  225. See generally Michael A. Livermore & Richard L. Revesz, Rethinking Health-Based Environmental Standards, 89 N.Y.U. L. Rev. 1184, 1186–90 (2014) (discussing the “stopping point problem” in the context of air quality regulation). Balancing would require that an interest be defined such that it could be compared to the costs of refraining from the activity.
  226. See generally Esperanza Martinez, Prólogo, in La Naturaleza Con Derechos: De la Filosofía a la Política 7, 13–20 (Alberto Acosta & Esperanza Martínez eds., 2010) (arguing for the transformational potential of nature’s rights). But see Mary Elizabeth Whittemore, The Problem of Enforcing Nature’s Rights Under Ecuador’s Constitution: Why the 2008 Environmental Amendments Have No Bite, 20 Pacific Rim L. & Pol’y J. 659, 661 (arguing that, “all things considered, successful execution of the environment provisions is unlikely in Ecuador’s legal and political environment”).
  227. Fundación Pachamama, Reconocimiento de los Derechos de la Naturaleza en la Constitución Ecuatoriana 12 (2010).
  228. Whittemore, supra note 225, at 661.
  229. As Patricia Siemen from the Center for Earth Jurisprudence warned, without political support, environmental rights “won’t be enforced.” Brandon Keim, Nature to Get Legal Rights in Bolivia, Wired (Apr. 18, 2011), https://www.wired.com/2011/04/gulf-natural-rights/ [https://perma.cc/XK4N-FL6E].
  230. Akchurin, supra note 81, at 956.
  231. Craig M. Kauffman & Pamela L. Martin, Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian Lawsuits Succeed and Others Fail, 92 World Dev. 130, 131 (2017).
  232. Id. at 134; Craig M. Kauffman, Rights of Nature Lawsuits in Ecuador, Env’t Pol. & Env’t Pol’y, https://blogs.uoregon.edu/craigkauffman/rights-of-nature-lawsuits-in-ecuador/ [https://‌perma.cc/H6YC-ZDRW].
  233. Kauffman & Martin, supra note 230, at 135–36.
  234. Id. at 134–35.
  235. Id. at 135.
  236. Id.
  237. Id. at 136–37.
  238. Id. at 137.
  239. Id.
  240. The conceptual problems outlined in Parts II and III would make it difficult, or impossible, to say whether nature’s rights have been appropriately vindicated in any given case. Nevertheless, we can evaluate judicial decisions involving nature’s rights on more general grounds. These include whether nature’s rights cases tend toward outcomes that the proponents of nature’s rights favor, whether decisions involving nature’s rights claims are predictable, and whether the reasons given by courts in nature’s rights cases are non-arbitrary and relate in a reasonable way to case outcomes.
  241. Corte Constitucional del Ecuador [Consitutional Court of Ecuador], Apr. 27, 2016, Sentencia No. 034-16-SIN-CC 1.
  242. Id. at 6.
  243. Id. at 14.
  244. Id.
  245. The court began by claiming that the constitutional change represented a “rupture with the traditional paradigm of considering nature a simple object.” Under this “new paradigm . . . nature is an independent subject of constitutional rights.” The court went on to state that “the Constitution breaks with an anthropocentric worldview, according to which humans are the center and end of all things, to a biocentrism one that recognizes that nature does not need humans but humans need nature.” La Corte Constitutional del Ecuador [the Constitutional Court of Ecuador] 27 Apr., 2016, Sentencia No. 034-16-SIN-CC 13 (translation by the author).
  246. Corte Constitucional del Ecuador, Sentencia No. 034-16-SIN-CC 16 (translation by the author).
  247. La Corte Constitutional del Ecuador [the Constitutional Court of Ecuador], May 20, 2015, Sentencia No. 166-15-SEP-CC 14.
  248. Id. at 13⁠–14.
  249. Id. at 15–16 (translation by the author).
  250. La Corte Constitutional del Ecuador [the Constitutional Court of Ecuador], Sept. 2, 2015, Sentencia No. 293-15-SEP-CC 2–3.
  251. Id. at 13.
  252. Id.
  253. See generally Frederick Schauer, The Force of Law 5 (2015) (arguing for the particular role of sanctions in understanding the distinctive nature of law); Richard A. Posner, Economic Analysis of Law 183–84 (3d ed. 1986) (focusing on ex-ante incentive effects of law).
  254. Rebecca Stone, Legal Design for the “Good Man,” 102 Va. L. Rev. 1767, 1806 (2016).
  255. See, e.g., Richard H. McAdams, The Expressive Powers of Law: Theories and Limits 9 (2017) (offering a general theory on how law affects behavior via effects on beliefs and attitudes).
  256. Robert Cooter, Expressive Law and Economics, 27 J. Legal Stud. 585, 586 (1998).
  257. See, e.g., Laitos, supra note 89, at 759, 797–98 (2019) (describing what amounts to expressive theory of nature’s rights, although not referring to it as such). As discussed above, indigenous communities often provide pivotal political support for efforts to create nature’s rights. See supra Part I. The (potential) instrumental value of nature’s rights, then, could be understood not only in terms of human-nature relationships but also based on whether they have positive effects on the standing or treatment of these communities within their societies. It is certainly possible for nature’s rights campaigns to have strategic value in promoting the broader political goals of indigenous communities. Whether such campaigns are the best use of scarce resources is a pragmatic judgment based on a complex set of political, cultural, social, and behavioral factors.
  258. Oliver A. Houck, Noah’s Second Voyage: The Rights of Nature as Law, 31 Tul. Env’t L.J. 1, 35 (2017).
  259. Linda Sheehan, Implementing Rights of Nature Through Sustainability Bills of Rights, 13 N.Z. J. Pub. & Int’l L. 89, 98 (2015).
  260. Akchurin, supra note 81, at 962.
  261. Stone, supra note 89, at 500–01.
  262. Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363, 1375 (2000). Adler ultimately rejects this type of expressive theory. Id. See also Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021, 2045 (1996) (distinguishing between expressive theories that focus on “norm management” from those that emphasize the “intrinsic” character of some statements).
  263. See generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1504 (2000) (“[W]hat makes an action morally right depends on whether it expresses the appropriate valuations of (that is, attitudes toward) persons.”).
  264. Houck, supra note 257, at 35.
  265. See Cope, Creamer & Versteeg, supra note 15, at 155.
  266. See, e.g., Adam S. Chilton & Mila Versteeg, The Failure of Constitutional Torture Prohibitions, 44 J. Legal Stud. 417, 434 (2015) (finding no evidence that constitutional torture prohibitions have reduced rates of torture in a statistically significant or substantively meaningful way).
  267. David S. Law & Mila Versteeg, Sham Constitutions, 101 Calif. L. Rev. 863, 865–67 (2013).
  268. See generally Adam Chilton & Mila Versteeg, How Constitutional Rights Matter (2020) (examining the efficacy of constitutional rights); Chilton & Versteeg, supra note 15, at 577.
  269. Cope, Creamer & Versteeg, supra note 15, at 171; see generally Chilton & Versteeg, supra note 267 (examining in detail the efficacy of these rights).
  270. Cope, Creamer & Versteeg, supra note 15, at 171.
  271. Id.
  272. See generally Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (2009) (examining role of mobilization in the vindication of international human rights commitments); Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (1998) (documenting the role of activists, organizations, and democratized access to courts in expanding civil rights and liberties in various jurisdictions).
  273. Cf. Vanberg, supra note 15, at 309 (arguing that procedural constitutional constraints have significant advantages over constitutional norms that attempt to secure broader substantive values); see also May & Daly, supra note 5, at 237 (suggesting that, collectively, such process rights can raise awareness, provide opportunities to participate, foster empowerment, strengthen local communities, facilitate government accountability, increase public acceptance of decisions, and contribute to the legitimacy of governmental action).
  274. See, e.g., Zygmunt J.B. Plater, Dealing with Dumb and Dumber: The Continuing Mission of Citizen Environmentalism, 20 J. Env’t L. & Litig. 9 (2005); Cary Coglianese, Social Movements, Law, and Society: The Institutionalization of the Environmental Movement, 150 U. Pa. L. Rev. 85, 87–88 (2001).
  275. See generally United Nations General Assembly, Report of the Special Rapporteur on the Situation of Human Rights Defenders A/71/281 (2016) (describing the “increasing violence, intimidation, harassment and demonization” of environmental activists).
  276. United Nations Environmental Program, Environmental Rule of Law 116–34 (2019).
  277. Global Witness, Enemies of the State? 7, 23, 30 (2019).
  278. For example, within the United States, there is a long history of environmental organizations using procedural statutes for substantive ends. See generally William W. Buzbee, Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City 5 (2014) (documenting many ways groups used procedural challenges in the course of a year-long environmental campaign).

The Chimerical Concept of Original Public Meaning

This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (“PMO”) ascends toward a position of dominance within the Supreme Court, both practitioners and critics should recognize the limited capacity of historical and linguistic facts to settle modern issues.

To understand successful constitutional communication, this Article argues, requires a distinction between “minimal” original public meanings, which either are entailed by language and logic or are otherwise noncontroversial, and the richer and more determinate meanings that originalists often purport to discover. When the Constitution says that each state shall have “two Senators,” “two” means two. By contrast, when members of the Founding generation disagreed about the meaning of a constitutional provision—as they frequently did—the idea of a uniquely correct and determinate more-than-minimal meaning that existed as a matter of linguistic and historical fact is chimerical. Judges can of course reach determinate conclusions, but seldom can those dispute-resolving conclusions be ones of simple historical fact.

Insofar as practitioners of PMO—including Justices of the Supreme Court—purport to discover more-than-minimal original public meanings that provide determinate resolutions to contested cases, skepticism is in order. The problem with claims about more-than-minimal original public meanings is conceptual, not epistemological. Although public meaning originalists speak of “evidence” establishing the historical validity of disputed claims about original public meanings, they have no adequate account of what, exactly, the evidence is supposed to be evidence of. Beyond historical facts about who said and believed different things at particular times, there is no further, diversity-transcending fact of an original public meaning that extends beyond minimal and noncontroversial meanings.

After identifying the conceptual limitations of public meaning originalism, this Article examines the resulting challenges for both theorists of PMO and for originalist and nonoriginalist Justices alike. It also draws lessons concerning the nature of and necessary conditions for successful constitutional communication across generations.

Introduction

With the confirmation of Justice Amy Coney Barrett as an Associate Justice of the Supreme Court, originalism has moved to center stage once more in constitutional debates in the United States. Justice Barrett self-identifies as an originalist.1.See, e.g., Full Transcript: Read Judge Amy Coney Barrett’s Remarks, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/2020/09/26/us/politics/full-transcript-amy-coney-barrett.html [https://perma.cc/J48S-S8ZC] (“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too.”); Nomination of the Honorable Amy Coney Barrett to Be an Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 116th Cong. 4 (2020) (opening statement of Amy Coney Barrett) (arguing judges should “interpret[] our Constitution and laws as they are written”); see also Kanter v. Barr, 919 F.3d 437, 454–65 (7th Cir. 2019) (Barrett, J., dissenting) (exemplifying, in the Second Amendment context, Justice Barrett’s emphasis on historical analysis).Show More So does Justice Neil Gorsuch,2.See, e.g., Neil Gorsuch, A Republic, If You Can Keep It 116–27 (2019) (advancing defense of originalism); Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1381 (2018) (Gorsuch, J., dissenting) (contending that “[t]he Constitution’s original public meaning supplies the key” to its interpretation).Show More whom President Trump nominated and the Senate confirmed to succeed Justice Antonin Scalia. Justice Clarence Thomas has long argued for judicial decision making based on “the original public meaning” of the Constitution.3.See, e.g., Rosenkranz Originalism Conference Features Justice Thomas ’74, Yale Law School (Nov. 4, 2019), https://law.yale.edu/yls-today/news/rosenkranz-originalism-conference-features-justice-thomas-74 [https://perma.cc/3SKV-9LBQ] (quoting Justice Thomas as saying that modern day originalists should “give the words and phrases used by [authors] natural meaning in context” and that doing otherwise “usurps power from the people”); see also Gregory E. Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas?, 4 N.Y.U. J.L. & Liberty 494, 495, 511 (2009) (describing Justice Thomas’ originalism).Show More Justice Samuel Alito has characterized himself as “a practical originalist.”4.Matthew Walther, Sam Alito: A Civil Man, American Spectator (Apr. 21, 2014, 12:00 AM), https://spectator.org/sam-alito-a-civil-man [https://perma.cc/XD92-CVGH] (“I think I would consider myself a practical originalist.”); see also Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito, 87 Geo. Wash. L Rev. 507, 512 (2019) (observing that a “theme of Justice Alito’s jurisprudence is originalism, though not in the traditional sense of the word that one might associate with Justice Scalia”).Show More

With the prospect that originalist Justices might transform our constitutional law now a palpable one, the question “What is originalism?” deserves close re-consideration. Re-consideration is warranted, despite a bulging catalogue of books and articles debating originalism, because originalism—as originalists themselves sometimes emphasize—has always been and remains a “work in progress.”5.Scott Soames, Originalism and Legitimacy, 18 Geo. J.L. & Pub. Pol’y 241, 246 (2020) [hereinafter Soames, Originalism and Legitimacy]. For a brief history of originalism, see Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory, in The Challenge of Originalism: Theories of Constitutional Interpretation 12, 12 (Grant Huscroft & Bradley W. Miller eds., 2011).Show More

The leading current version is public meaning originalism (“PMO”).6.See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1251 (2019) (“Most contemporary originalists aim to recover the public meaning of the constitutional text at the time each provision was framed and ratified; this has been the dominant form of originalism since the mid-1980s.”); Jamal Greene, The Case for Original Intent, 80 Geo. Wash. L. Rev. 1683, 1684 (2012) (“Today, most academic originalists and even some living constitutionalists say that constitutional interpretation should proceed, first and foremost, from the original meaning of the text at issue.”); Steven G. Calabresi & Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648, 649 (2016) (asserting that “all modern originalists . . . are original public meaning textualists”). But cf. Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156, 158 (2017) (noting that “[a] number of scholars, this author among them, have argued for shifting focus from original meaning to our original law”).Professor Solum distinguishes four varieties of originalism in addition to public meaning originalism: Original Intentions Originalism (“The original meaning of the constitutional text is the meaning that the framers intended to convey.”); Ratifiers’ Understandings Originalism (“The original meaning of the constitutional text is the meaning conveyed to the ratifiers of each provision.”); Original Methods Originalism (“The original meaning of the constitutional text is the meaning produced by application of the original methods of constitutional interpretation and construction to the text.”); and Original Law Originalism (“The law in effect at the time the Constitution was ratified is legally binding unless it was changed by methods authorized by the original law.”). Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2017 B.Y.U. L. Rev. 1621, 1627 [hereinafter Solum, Triangulating Public Meaning]. For an alternative, critical typology, see Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 247–62 (2009).Show More Justice Scalia was a founding member of the public meaning originalist school,7.See Antonin Scalia, Address Before the Attorney General’s Conference on Economic Liberties in Washington, D.C. (June 14, 1986), in Original Meaning Jurisprudence: A Sourcebook 101, 106 (U.S. Dep’t of Just. ed., 1987) (arguing that originalists “ought to campaign to change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning”); see also Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L.J. 1113, 1139 (2003) (characterizing Justice Scalia as “original meaning textualism’s patron saint”).Show More with which Justices Thomas, Gorsuch, and Barrett also have associated themselves.8.See sources cited supra notes 1–4.Show More Public meaning originalists do not all agree about everything, but they coalesce around a central tenet: the original and unchanging meaning of a constitutional provision is either (1) what a reasonable person who knew the publicly available facts about the context of its drafting would have taken it to mean9.See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (“In their full context, words mean what they conveyed to reasonable people at the time they were written.”); Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 92 (2004) (“‘[O]riginal [public] meaning’ originalism seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment.”); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001) [hereinafter Barnett, Commerce Clause]; Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 Const. Comment. 47, 48 (2006) (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people . . . but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1440 (2014) (“[T]he true, original public meaning of the language employed . . . [is] the objective meaning the words would have had, in historical, linguistic, and political context, to a reasonable, informed speaker and reader of the English language at the time that they were adopted.”).Show More or (2) what literate and informed members of the public actually understood it to be,10 10.See, e.g., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 60 (1999) (asserting that the process of ratification gave the constitutional “text the meaning that was publicly understood”); Lawrence B. Solum, Cooley’s Constitutional Limitations and Constitutional Originalism, 18 Geo. J.L. & Pub. Pol’y 49, 57 (2020) [hereinafter Solum, Cooley’s Constitutional Limitations] (“The original meaning of the constitutional text is best understood as the meaning communicated to the public at the time each provision was framed and ratified.”); Lawrence B. Solum, Originalist Theory and Precedent: A Public Meaning Approach, 33 Const. Comment. 451, 453 (2018) [hereinafter Solum, Originalist Theory] (“The public meaning of the constitutional text is . . . the content communicated to the public by the text and the publicly available context of constitutional communication.”); Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1136 (1998) (“Originalism is the idea that the words of the Constitution must be understood as they were understood by the ratifying public at the time of enactment.”).Show More at the time of its promulgation. Although these two formulations diverge as a conceptual matter, the practical difference is usually small. Because there is typically no way of discovering at the individual level what most people understood a provision’s meaning to be at the time of its ratification, originalist inquiries tend to focus on what those who knew its language and the publicly available facts about its drafting would reasonably or most reasonably would have understood it to communicate.11 11.To take a single illustrative example, Professor Lawrence Solum, who frequently defines original public meanings by reference to “the meaning communicated to the public,” see Solum, Cooley’s Constitutional Limitations, supra note 10, at 57, criticizes the efforts to discern original meanings by historians who focus primarily on assertions by particular historical figures and do not attend sufficiently to “the communicative content of the text” by closely examining its “semantics or pragmatics.” Solum, Triangulating Public Meaning, supra note 6, at 1653–54.Show More

Two primary assumptions link practitioners of PMO as adherents of a single school or approach. First, PMO assumes that members of the Framing generation would have discovered the linguistic meaning of constitutional provisions in roughly the same way that they would have ascertained the meaning of utterances in ordinary conversation.12 12.See, e.g., Scott Soames, Interpreting Legal Texts: What Is, and What Is Not, Special About the Law, in 1 Philosophical Essays: Natural Language: What It Means and How We Use It 403, 403 (Scott Soames ed., 2009) [hereinafter Soames, Interpreting Legal Texts] (arguing that “[p]rogress can . . . be made . . . by seeing [legal and statutory interpretation] as an instance of the more general question of what determines the contents of ordinary linguistic texts”); Lawrence B. Solum, Semantic Originalism 28 (Ill. Pub. L. & Legal Theory Rsch. Paper Series, Research Paper No. 07-24, 2008), available at http://papers. ssrn.com/sol3/papers.cfm?abstract_id=1120244 [https://perma.cc/625M-RML5] (describing the Constitution as a “text” and explaining the central role of semantic theory, framed as “the theory of the meaning of utterances,” in establishing the “linguistic meaning” of constitutional provisions).Show More Public meaning originalists acknowledge that the “model of conversational interpretation”13 13.See Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 275 (2019); cf. Saul Cornell, President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era, 89 Fordham L. Rev. 1761 (2021) (referring to “[t]he ‘standard communication model’ favored by many originalists”).Show More may require modest adaptations to address the peculiarities of constitutional interpretation.14 14.See infra notes 52–53 and accompanying text.Show More Nonetheless, they insist, the interpretive methods that structure conversational interpretation furnish a workable template for ascertaining constitutional meanings. I call this the Interpretive Methodology Assumption.

Second, PMO posits that the original meanings of constitutional provisions, like those of conversational utterances, exist as a matter of historical and linguistic fact.15 15.See Lawrence B. Solum, Originalist Methodology, 84 U. Chi. L. Rev. 269, 278 (2017) [hereinafter Solum, Originalist Methodology] (“[T]he communicative content of the constitutional text is a fact.”); Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 12 (2015) [hereinafter Solum, Fixation Thesis] (“The communicative content of a text is determined by linguistic facts . . . and by facts about the context in which the text was written. Interpretations are either true or false—although in some cases we may not have sufficient evidence to show that a particular interpretation is true or false.”); Soames, Originalism and Legitimacy, supra note 5, at 248 (asserting that “[t]he contents” of statutes and other linguistic acts by collective bodies “is, in principle, derivable from the relevant, publicly available, linguistic and non-linguistic facts”).Show More The factual status of original public meanings inheres in the conjunction of empirical facts about words’ meanings, rules of grammar and syntax, political events leading up to constitutional provisions’ adoptions, and the theoretical, meaning-generating premises of the model of conversational interpretation as adapted to constitutional interpretation.16 16.See Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame L. Rev. 479, 497–98 (2013) [hereinafter Solum, Communicative Content] (defining public meaning as “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”).Show More I call this the Conceptual Assumption.

This Article argues that original public meanings, in the sense in which originalists use that term, are insufficient to resolve any historically contested or otherwise reasonably disputable issue17 17.For a different argument to a similar conclusion, see Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 714 (2011) (arguing that the most sophisticated versions of “the New Originalism” have responded to criticisms of “the Old Originalism” with adaptations that severely limit their claims to determinacy).Show More—an important qualification that I shall explain shortly. The two central assumptions that undergird PMO will not withstand analysis. PMO’s Interpretive Methodology Assumption is untenable. Without it, the Conceptual Assumption crumbles as well.

PMO’s difficulties begin with the Interpretive Methodology Assumption that we can identify linguistic meanings of constitutional provisions that are determinate enough to settle disputed questions by using substantially the same, largely unselfconscious techniques that we employ in interpreting conversational utterances. Given this assumption, PMO equates the meaning of a constitutional provision (or what some philosophers would call a provision’s assertive or communicative content18 18.This is the preferred, technical vocabulary of the public meaning originalists who draw most explicitly on the conceptual apparatus of the philosophy of language. See infra notes 54–56 and accompanying text.Show More) with what either reasonable people or actual people who are assumed to be reasonable would have taken it to mean in the context of its promulgation. But the assimilation of constitutional to conversational interpretation grows problematic when one probes which elements of context a reasonable listener normally takes into account in determining what a remark communicates, asserts, or stipulates. Almost self-evidently, the identity of the speaker matters crucially. Depending on who the speaker was, reasonable people would make different assumptions about the “interpretive common ground”19 19.My usage follows that of Professor Mark Richard, who defines interpretive common ground as shared presuppositions. See Mark Richard, Meanings as Species 3 (2019).Show More that they share with the speaker and about the speaker’s likely communicative intentions. If someone tells me, “Let’s meet at our usual spot at the usual time,” information of this kind will contribute decisively to the meaning (or communicative content) of her utterance. In the case of constitutional provisions, however, there typically is no unitary speaker.20 20.See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 213–15 (1980); Solum, supra note 12, at 40.Show More Constitutional provisions frequently have multiple or in some cases unknown authors who may have had different communicative intentions and held different assumptions about how the public would understand their words.21 21.See infra Subsection II.A.2.a.Show More

Public meaning originalists have diverse strategies for evading this difficulty, mostly by imagining the “reasonable” audience for constitutional provisions as endowed with qualities that make attention to speakers’ particularized communicative intentions unnecessary.22 22.See infra notes 167–191 and accompanying text.Show More But none of those strategies succeeds. It is impossible to give even a modestly rich description of the “context” of constitutional provisions’ promulgation without taking account of who the promulgators were and what understandings or responses they aimed to provoke in their audiences.

The model of conversational interpretation also fails to fit the case of constitutional interpretation for reasons involving the idea of a “reasonable” reader of constitutional provisions whose judgments determine those provisions’ original meanings. Among other things, the audiences for constitutional provisions are diverse. In addition, we know as a matter of historical fact that different, informed, and evidently reasonable people who were alive at the time of constitutional provisions’ promulgation have often disagreed about what those provisions meant.23 23.See infra Subsection III.B.1 (observing disagreement about the meanings of multiple constitutional provisions).Show More

In cases of disagreement, one approach to ascertaining original public meaning would be to investigate what different people who were alive at the time actually thought and to seek to discover whether there was a majority—or failing that, a plurality—view. Indeed, one might expect PMO adherents who equate public meanings with actual people’s historical understandings to pursue that strategy.24 24.See supra note 10 and accompanying text (citing examples of such PMO adherents).Show More Yet I know of no originalist who has worked out a methodology for calculating how many citizens of the past qualified as sufficiently informed to judge the meanings of particular constitutional provisions competently, for identifying how many had one understanding of a disputed provision in comparison with another, and for resolving disagreements by one or another numerically-based protocol.25 25.See, e.g., Richard A. Primus, When Should Original Meanings Matter?, 107 Mich. L. Rev. 165, 214 (2008) (“[W]hen [originalist material] speaks in many voices, there is no way to settle the question of whether a view expressed in the Pennsylvania ratifying convention is more or less authoritative than a view expressed in the newspapers of Massachusetts.”).Show More Rather, as I have said, when it comes to the actual practice of PMO, the touchstone for virtually all inquiries is a hypothetical, reasonable person and the conclusions that such a being would have drawn in light of publicly available evidence.26 26.See, e.g., Lawson & Seidman, supra note 9, at 48 (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people—whether drafters, ratifiers, or commentators, however distinguished and significant within the drafting and ratification process they may have been—but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); cf. Solum, Triangulating Public Meaning, supra note 6, at 1637 (“Original public meaning should be distinguished from what have been called ‘original expected application[s].’”).Show More

The unworkability of the model of conversational interpretation as a template for ascertaining the uniquely correct, fact-of-the-matter meanings of constitutional provisions points to an equally shattering conclusion concerning PMO’s Conceptual Assumption: original constitutional meanings that are ascertainable as a matter of historical fact, which are PMO’s Holy Grail, do not exist in forms capable of resolving any historically or reasonably disputed issue.

I restrict my thesis to reasonably disputed cases because, although identifying the meaning of an utterance in context often requires knowing who the speaker was and what she intended to convey, sometimes there may be no reasonable doubt on any relevant score. For example, when Article I, Section 3, Clause 1 provides that “[t]he Senate of the United States shall be composed of two Senators from each State,”27 27.U.S. Const. art. I, § 3, cl. 1.Show More its meaning or communicative content is unmistakable. “Two” means two. The term “each State” refers to the States of the United States. It is equally clear that no provision of the Fourteenth Amendment, read in its linguistic and historical context, requires that citizens of the United States eat cornflakes for breakfast. Reaching these conclusions requires no fine-grained knowledge about the relevant provisions’ authors or about possibly divergent linguistic, historical, biographical, or political assumptions among their audiences. In cases such as these, it suffices to assume that the speaker or speakers—whoever they may have been—would have had what I shall call the “minimal” communicative intentions that would be necessary to make a provision intelligible in its linguistic, historical, and institutional context.28 28.This usage echoes Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 284–85 (2009) (positing that legislators should be assumed to vote for legislation with the “minimal intention” to make law that will be “understood” in accordance with the norms of “their legal culture”).Show More These would include such intentions as to create binding law and to convey, in English, whatever a reasonable listener would necessarily or noncontroversially understand the words of the provision either to require, provide, or stipulate or not to require, provide, or stipulate in light of publicly known facts about their drafting.29 29.Ryan C. Williams, The Ninth Amendment as a Rule of Construction, 111 Colum. L. Rev. 498, 544 (2011), proposes a test along these lines. For discussion of the details and implications of his proposal, see infra notes 207–08 and accompanying text.Show More In cases of evidently unanimous historical understanding, we could thus say that those provisions had the minimal original meanings and non-meanings on which everyone or nearly everyone living at the time either converged or would have converged. If originalists defined constitutional provisions’ original public meanings as limited to their minimal meanings and non-meanings, then I would offer no conceptual objection to claims that uniquely correct original public meanings could be identified as a matter of historical and linguistic fact.

In practice, however, I know of almost no originalists who accept that original public meanings are limited to minimal meanings as I have defined that term. Although there are exceptions, including Professor Jack Balkin,30 30.See, e.g., Jack M. Balkin, Living Originalism 21 (2011) (defending “framework originalism”) [hereinafter Balkin, Living Originalism]; Jack M. Balkin, The Construction of Original Public Meaning, 31 Const. Comment. 71, 80 (2016) [hereinafter Balkin, Construction].Show More public meaning originalists characteristically advance their theories with more substantial ambitions than clarifying how original public meanings can resolve such non-debates as whether Article I requires that each state should have exactly two Senators or whether the Equal Protection Clause mandates that everyone eat cornflakes. Certainly, this is true of the Justices of the Supreme Court who self-identify as originalists. Rather than defining the original public meaning as limited to minimally necessary (for intelligibility) or historically noncontroversial meaning, mainstream public meaning originalists posit that constitutional provisions’ original public meanings consist of minimal meanings plus some further content that, they maintain, can also be discovered as a matter of historical and linguistic fact.31 31.See infra Section I.A.Show More To put the point more concretely, they believe that there is a historically and linguistically discoverable original public meaning that is capable of resolving, as a matter of fact, such historically disputed questions as whether the Second Amendment, the preamble to which refers to the importance of “a well regulated Militia,” safeguards a personal right “to keep and bear arms” for purposes of self-defense;32 32.U.S. Const. amend. II. See District of Columbia v. Heller, 554 U.S. 570, 576 (2008) (grounding the conclusion that the Second Amendment protects a personal right to possess arms for self-defense in “the principle that ‘[t]he 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’” (quoting United States v. Sprague, 282 U.S. 716, 731 (1931))); id. at 652–79 (Stevens, J., dissenting) (analyzing Second Amendment’s historical context and concluding that any rights that it created were linked to service in a well-regulated militia); see also Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 Harv. L. Rev. 246, 246 (2008) (“Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning.”); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 924 (2009) (contending that Heller offered “the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court”).Show More whether the Free Speech Clause of the First Amendment protects corporate spending to influence political campaigns;33 33.See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 385–93 (2010) (Scalia, J., concurring) (emphasizing majority opinion’s consistency with original public meaning of the First Amendment); id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (disputing this analysis); see also Leo E. Strine, Jr. & Nicholas Walter, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, 91 Notre Dame L. Rev. 877, 878 (2016) (providing an overview of the historical dispute between the two opinions).Show More and whether the Fourteenth Amendment bars discrimination on the basis of sex or sexual orientation.34 34.See, e.g., Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”); id. at 726 (Thomas, J., dissenting) (charging the Court with “los[ing] its way” in “deviating from the original meaning of the [Due Process] Clauses”); cf. Calabresi & Begley, supra note 6, at 652–54 (2016) (challenging Justice Thomas’s approach and offering originalist defense of Obergefell).Show More Historically disputable issues such as these dominate the Supreme Court’s docket of constitutional cases.

In cases of this kind, claims that determinate original public meanings existed as a matter of historical and linguistic fact reflect a conceptual or metaphysical mistake.35 35.On the distinction between the metaphysics of meaning and the epistemological issues involved in its ascertainment, see Michael Devitt, Three Methodological Flaws of Linguistic Pragmatism, in What Is Said and What Is Not: The Semantics/Pragmatics Interface 285, 285–86 (Carlo Penco & Filippo Domaneschi eds., 2013).Show More Beyond minimal meanings, there is no single historical fact of the matter about what disputed constitutional provisions more determinately meant and, thus, no determinate original public meaning.36 36.Cf. Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529, 601–02 (2008) (noting the pointlessness of seeking to establish “the standard of proof necessary to establish a ‘fact’ that never existed”).Show More Insofar as originalists equate the original public meaning with what a reasonable person would have concluded, they mistakenly seek to answer an epistemological question, involving how best to ascertain what the original public meaning was, without first resolving a logically prior conceptual or metaphysical question. That question is whether original public meanings that are broader than minimal meanings exist in a form that a reasonable person could identify as a matter of historical or linguistic fact—that is, without making a judgment about which interpretation would be best in some normative sense or without invoking a challengeable theory of what makes the meaning that some ascribed to a constitutional provision, but that others did not, the true original public meaning. Charged with ascertaining the original public meaning of a constitutional provision, a reasonable decision-maker could not sensibly begin with the question, “What would a reasonable person think the original meaning was?” Instead, a reasonable decision-maker would need to begin with a theory of what in the world makes it true that constitutional provisions have particular original public meanings (if they do) so that the mode of inquiry could be adjudged reasonable or reliable.37 37.A comparison with other contexts in which the law employs “reasonable person” standards confirms this conclusion. The most characteristic function of “reasonable person” standards is to embody reasonableness in a particular domain of thought, action, or disposition. See Christopher Jackson, Reasonable Persons, Reasonable Circumstances, 50 San Diego L. Rev. 651, 655 (2013) (quoting Peter Westen, Individualizing the Reasonable Person in Criminal Law, 2 Crim. L. & Phil. 137, 139 (2008)) (asserting that “[a] reasonable person is reasonableness rendered incarnate”). In seeking to resolve disputed questions, the reasonable person pursues the methods of inquiry appropriate to achievement of true beliefs about the matter in question. See John Gardner, The Mysterious Case of the Reasonable Person, 51 U. Toronto L.J. 273, 273 (2001) [hereinafter Gardner, The Mysterious Case] (defining the “reasonable person” as a “justified” person whose actions satisfy the standards of justification appropriate for actions of the relevant kind and whose beliefs are similarly justified); John Gardner, Reasonable Person Standard, in The International Encyclopedia of Ethics (Hugh LaFollette ed., 2019) (“When the law’s question is what the reasonable person would [believe], the answer is that she would have reasonable [beliefs].”). The deep, underlying assumption is that true beliefs are possible.Show More

With that challenge on the table, I take the original public meaning of constitutional provisions, as public meaning originalists use the term, to be a theoretical construct in the same way that “gross domestic product” and “IQ”—to take two quite disparate examples—are theoretical constructs.38 38.Cf. Balkin, Construction, supra note 30, at 78 (terming the original public meaning “a constructed entity”); Jack M. Balkin, Lawyers and Historians Argue About the Constitution, 35 Const. Comment. 345, 369 (2020) (“‘Original public meaning’ is a theoretical construction, a mediated account of the past that serves the purposes of law and legal theory.”).Show More To be more precise, the original public meaning of a constitutional provision is partly a function of the theory by which the original public meaning is defined. Reliance on a “reasonable person” standard could thus furnish meaningful standards of inquiry only if public meaning originalists had a sufficiently specified theory to tell reasonable inquirers what they ought to look for and ultimately how to produce correct results. A theory linked instead to what people actually thought or believed would have parallel problems. Since very few people would likely have studied the language of proposed provisions or reflected thoughtfully on their implications for particular issues, such a theory needs an account of which mental states or dispositions mattered. It would also have to specify the conditions under which a contested view should count as the singularly correct original meaning. When confronted with theoretical and conceptual challenges such as these, PMO comes up dramatically short.39 39.See, e.g., Richard S. Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. Rev. 703, 720 (2009) (“Public meaning is, quite explicitly, an artificial construct. The qualifying criteria . . . depend on assumptions about how some chosen hypothetical speaker of the language would apprehend the text at issue. Even in theory there is no ‘right answer.’”). According to Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. (forthcoming Dec. 2021) (manuscript at 52) (on file with author) [hereinafter Solum, Public Meaning Thesis], “When there is controversy over the public meaning, we aim for the interpretation that best explains all the available evidence.” Although this formulation presupposes the existence of a theory that identifies some “evidence” as relevant and supports inferences about the relationship of evidence to conclusions, Professor Solum never articulates the theory on which he relies.Show More Without clear criteria for identifying the truth conditions for claims about original public meanings in cases of actual historical disagreement, PMO appears to insist that “we know it when we see it.” Yet an “it” that exists only insofar as particular practitioners of PMO see it is not the kind of “original public meaning” that they or anyone else should want to make the object of historical inquiry.

To be clear, just as I recognize that constitutional provisions can have minimal original public meanings, I accept—indeed, I shall emphasize—that courts and judges can reach better- or worse-supported conclusions about constitutional provisions’ original legal meanings, even in disputed cases. Proper ascription of legal meanings depends on a mixture of facts about ordinary language use, legal norms, and moral norms, not the mistaken premise that disputed provisions had uniquely correct, original linguistic meanings that are simultaneously factual, reliably ascertainable, and capable of resolving reasonably disputable issues.40 40.In listing moral norms among the factors relevant to legal reasoning, I assume that insofar as authoritative legal materials otherwise fail to provide an answer to a legally disputed questions, a judge should adopt the legally eligible answer that would be morally best. See, e.g., Joseph Raz, Incorporation by Law, 10 Legal Theory 1 (2004).For a different argument from mine to the shared conclusion that disputed constitutional provisions typically lack uniquely correct and determinate linguistic meanings, see Frederick Mark Gedicks, The ‘Fixation Thesis’ and Other Falsehoods, 72 Fla. L. Rev. 219, 223–24 (2020) (arguing that belief in original public meanings represents an ontological mistake because “[t]he meaning of any text from the past is also shaped by the demands of the interpreter” with the result that “in the present[,] textual meaning is mutually constituted by past and present”).Show More

In developing my argument that constitutional provisions lack uniquely correct, original public meanings in the special, stipulated sense that leading originalists postulate, this Article pursues a two-pronged strategy. One branch of my argument advances analytically-based criticisms of PMO. The second juxtaposes the linguistic assumptions that undergird PMO with the picture of linguistic and ultimately constitutional meaning that emerges from work by historians and especially from a recent book on Reconstruction and the Reconstruction Amendments, entitled The Second Founding: How the Civil War and Reconstruction Remade the Constitution, by the eminent historian Professor Eric Foner.41 41.Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xxiv (2019).Show More In describing Foner as an eminent historian, I do not vouch for his conclusions. For purposes of thinking about the plausibility of PMO, however, I accept his account of disagreement and uncertainty among those who helped draft the Fourteenth Amendment and who struggled to identify its communicative content.

In contrast with PMO’s posit that constitutional provisions have single linguistic meanings, Foner insists that the language of the Fourteenth Amendment had multiple, diverse meanings at the time of its promulgation. “[T]he meaning of key concepts embedded in the Reconstruction amendments such as citizenship, liberty, equality, rights, and the proper location of political authority—ideas that are inherently contested—were themselves in flux,”42 42.Id.Show More he writes. More than one Congressman expressed doubt about what key provisions of the Fourteenth Amendment meant. Others confessed to having changed their minds about what rights the Fourteenth Amendment ought to create in the course of debates. If these claims are true, they should inspire skepticism about any version of PMO that posits the existence of original public meanings that extend beyond minimally necessary and noncontroversial meanings and that can be discerned, without a well-specified theory for how to resolve disagreements about central issues, as a matter of historical and linguistic fact.43 43.Crediting Foner’s specific factual claims, a public meaning originalist might say that even if Foner has shown that the communicative content of the Fourteenth Amendment was vague or underdeterminate in many relevant respects, this finding does not preclude PMO’s claim to be able to identify uniquely correct meanings, going beyond minimally necessary meanings, in some other cases of historical disagreement. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 52) (“[T]he case for Public Meaning Originalism would actually be quite strong if, at the end of the day, it turned out that only [the Privileges or Immunities and Equal Protection Clauses of the Fourteenth Amendment] were so underdeterminate that their original public meaning left almost all of the important contemporary questions in the construction zone.”). I reject that originalist response, for reasons given already. Original public meanings in the originalist sense are the artifacts of a model for the generation of linguistic meanings or communicative content that is too poorly specified to generate uniquely correct meanings in any historically debated or reasonably disputable case.Show More

The Article unfolds as follows. Part I lays out the main tenets of PMO, including its Interpretive Methodology and Conceptual Assumptions. Part I also offers a preliminary contrast between PMO’s conception of linguistic meaning and the alternative reflected in Professor Foner’s recent book, which argues that constitutional provisions can have multiple meanings. According to Foner, “no historian believes that any important document possesses a single intent or meaning.”44 44.Foner, supra note 41, at xxiv.Show More Part II debunks the notion that constitutional provisions have a single, factually identifiable, original linguistic meaning that extends beyond their necessary or historically noncontroversial meanings. Part III charts the implications of my thesis for public meaning originalists, for nonoriginalist as well as originalist judges and Justices, for constitution-writers and students of written constitutionalism, and for theories of statutory interpretation. Part IV furnishes a brief conclusion.

  1. * Story Professor of Law, Harvard Law School. I am grateful to Randy Barnett, Tom Colby, Gary Lawson, Liam Murphy, Fred Schauer, Larry Solum, Cass Sunstein, and Jeremy Waldron and to participants in the NYU Colloquium in Legal Political and Social Philosophy and the 2021 Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference for extraordinarily helpful comments on prior drafts. Julianna Astarita, Max Bloom, Emily Massey, and Benjamin Miller-Gootnick provided invaluable research assistance.

  2. See, e.g., Full Transcript: Read Judge Amy Coney Barrett’s Remarks, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/2020/09/26/us/politics/full-transcript-amy-coney-barrett.html [https://perma.cc/J48S-S8ZC] (“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too.”); Nomination of the Honorable Amy Coney Barrett to Be an Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 116th Cong. 4 (2020) (opening statement of Amy Coney Barrett) (arguing judges should “interpret[] our Constitution and laws as they are written”); see also Kanter v. Barr, 919 F.3d 437, 454–65 (7th Cir. 2019) (Barrett, J., dissenting) (exemplifying, in the Second Amendment context, Justice Barrett’s emphasis on historical analysis).

  3. See, e.g., Neil Gorsuch, A Republic, If You Can Keep It 116–27 (2019) (advancing defense of originalism); Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1381 (2018) (Gorsuch, J., dissenting) (contending that “[t]he Constitution’s original public meaning supplies the key” to its interpretation).

  4. See, e.g., Rosenkranz Originalism Conference Features Justice Thomas ’74, Yale Law School (Nov. 4, 2019), https://law.yale.edu/yls-today/news/rosenkranz-originalism-conference-features-justice-thomas-74 [https://perma.cc/3SKV-9LBQ] (quoting Justice Thomas as saying that modern day originalists should “give the words and phrases used by [authors] natural meaning in context” and that doing otherwise “usurps power from the people”); see also Gregory E. Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas?, 4 N.Y.U. J.L. & Liberty 494, 495, 511 (2009) (describing Justice Thomas’ originalism).

  5. Matthew Walther, Sam Alito: A Civil Man, American Spectator (Apr. 21, 2014, 12:00 AM), https://spectator.org/sam-alito-a-civil-man [https://perma.cc/XD92-CVGH] (“I think I would consider myself a practical originalist.”); see also Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito, 87 Geo. Wash. L Rev. 507, 512 (2019) (observing that a “theme of Justice Alito’s jurisprudence is originalism, though not in the traditional sense of the word that one might associate with Justice Scalia”).

  6. Scott Soames, Originalism and Legitimacy, 18 Geo. J.L. & Pub. Pol’y 241, 246 (2020) [hereinafter Soames, Originalism and Legitimacy]. For a brief history of originalism, see Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory, in The Challenge of Originalism: Theories of Constitutional Interpretation 12, 12 (Grant Huscroft & Bradley W. Miller eds., 2011).

  7. See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1251 (2019) (“Most contemporary originalists aim to recover the public meaning of the constitutional text at the time each provision was framed and ratified; this has been the dominant form of originalism since the mid-1980s.”); Jamal Greene, The Case for Original Intent, 80 Geo. Wash. L. Rev. 1683, 1684 (2012) (“Today, most academic originalists and even some living constitutionalists say that constitutional interpretation should proceed, first and foremost, from the original meaning of the text at issue.”); Steven G. Calabresi & Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648, 649 (2016) (asserting that “all modern originalists . . . are original public meaning textualists”). But cf. Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156, 158 (2017) (noting that “[a] number of scholars, this author among them, have argued for shifting focus from original meaning to our original law”).

    Professor Solum distinguishes four varieties of originalism in addition to public meaning originalism: Original Intentions Originalism (“The original meaning of the constitutional text is the meaning that the framers intended to convey.”); Ratifiers’ Understandings Originalism (“The original meaning of the constitutional text is the meaning conveyed to the ratifiers of each provision.”); Original Methods Originalism (“The original meaning of the constitutional text is the meaning produced by application of the original methods of constitutional interpretation and construction to the text.”); and Original Law Originalism (“The law in effect at the time the Constitution was ratified is legally binding unless it was changed by methods authorized by the original law.”). Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2017 B.Y.U. L. Rev. 1621, 1627 [hereinafter Solum, Triangulating Public Meaning]. For an alternative, critical typology, see Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 247–62 (2009).

  8. See Antonin Scalia, Address Before the Attorney General’s Conference on Economic Liberties in Washington, D.C. (June 14, 1986), in Original Meaning Jurisprudence: A Sourcebook 101, 106 (U.S. Dep’t of Just. ed., 1987) (arguing that originalists “ought to campaign to change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning”); see also Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L.J. 1113, 1139 (2003) (characterizing Justice Scalia as “original meaning textualism’s patron saint”).

  9. See sources cited supra notes 1–4.

  10. See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (“In their full context, words mean what they conveyed to reasonable people at the time they were written.”); Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 92 (2004) (“‘[O]riginal [public] meaning’ originalism seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment.”); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001) [hereinafter Barnett, Commerce Clause]; Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 Const. Comment. 47, 48 (2006) (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people . . . but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1440 (2014) (“[T]he true, original public meaning of the language employed . . . [is] the objective meaning the words would have had, in historical, linguistic, and political context, to a reasonable, informed speaker and reader of the English language at the time that they were adopted.”).

  11. See, e.g., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 60 (1999) (asserting that the process of ratification gave the constitutional “text the meaning that was publicly understood”); Lawrence B. Solum, Cooley’s Constitutional Limitations and Constitutional Originalism, 18 Geo. J.L. & Pub. Pol’y 49, 57 (2020) [hereinafter Solum, Cooley’s Constitutional Limitations] (“The original meaning of the constitutional text is best understood as the meaning communicated to the public at the time each provision was framed and ratified.”); Lawrence B. Solum, Originalist Theory and Precedent: A Public Meaning Approach, 33 Const. Comment. 451, 453 (2018) [hereinafter Solum, Originalist Theory] (“The public meaning of the constitutional text is . . . the content communicated to the public by the text and the publicly available context of constitutional communication.”); Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1136 (1998) (“Originalism is the idea that the words of the Constitution must be understood as they were understood by the ratifying public at the time of enactment.”).

  12. To take a single illustrative example, Professor Lawrence Solum, who frequently defines original public meanings by reference to “the meaning communicated to the public,” see Solum, Cooley’s Constitutional Limitations, supra note 10, at 57, criticizes the efforts to discern original meanings by historians who focus primarily on assertions by particular historical figures and do not attend sufficiently to “the communicative content of the text” by closely examining its “semantics or pragmatics.” Solum, Triangulating Public Meaning, supra note 6, at 1653–54.

  13. See, e.g., Scott Soames, Interpreting Legal Texts: What Is, and What Is Not, Special About the Law, in 1 Philosophical Essays: Natural Language: What It Means and How We Use It 403, 403 (Scott Soames ed., 2009) [hereinafter Soames, Interpreting Legal Texts] (arguing that “[p]rogress can . . . be made . . . by seeing [legal and statutory interpretation] as an instance of the more general question of what determines the contents of ordinary linguistic texts”); Lawrence B. Solum, Semantic Originalism 28 (Ill. Pub. L. & Legal Theory Rsch. Paper Series, Research Paper No. 07-24, 2008), available at http://papers. ssrn.com/sol3/papers.cfm?abstract_id=1120244 [https://perma.cc/625M-RML5] (describing the Constitution as a “text” and explaining the central role of semantic theory, framed as “the theory of the meaning of utterances,” in establishing the “linguistic meaning” of constitutional provisions).

  14. See Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 275 (2019); cf. Saul Cornell, President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era, 89 Fordham L. Rev. 1761 (2021) (referring to “[t]he ‘standard communication model’ favored by many originalists”).

  15. See infra notes 52–53 and accompanying text.

  16. See Lawrence B. Solum, Originalist Methodology, 84 U. Chi. L. Rev. 269, 278 (2017) [hereinafter Solum, Originalist Methodology] (“[T]he communicative content of the constitutional text is a fact.”); Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 12 (2015) [hereinafter Solum, Fixation Thesis] (“The communicative content of a text is determined by linguistic facts . . . and by facts about the context in which the text was written. Interpretations are either true or false—although in some cases we may not have sufficient evidence to show that a particular interpretation is true or false.”); Soames, Originalism and Legitimacy, supra note 5, at 248 (asserting that “[t]he contents” of statutes and other linguistic acts by collective bodies “is, in principle, derivable from the relevant, publicly available, linguistic and non-linguistic facts”).

  17. See Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame L. Rev. 479, 497–98 (2013) [hereinafter Solum, Communicative Content] (defining public meaning as “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”).

  18. For a different argument to a similar conclusion, see Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 714 (2011) (arguing that the most sophisticated versions of “the New Originalism” have responded to criticisms of “the Old Originalism” with adaptations that severely limit their claims to determinacy).

  19. This is the preferred, technical vocabulary of the public meaning originalists who draw most explicitly on the conceptual apparatus of the philosophy of language. See infra notes 54–56 and accompanying text.

  20. My usage follows that of Professor Mark Richard, who defines interpretive common ground as shared presuppositions. See Mark Richard, Meanings as Species 3 (2019).

  21. See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 213–15 (1980); Solum, supra note 12, at 40.

  22. See infra Subsection II.A.2.a.

  23. See infra notes 167–191 and accompanying text.

  24. See infra Subsection III.B.1 (observing disagreement about the meanings of multiple constitutional provisions).

  25. See supra note 10 and accompanying text (citing examples of such PMO adherents).

  26. See, e.g., Richard A. Primus, When Should Original Meanings Matter?, 107 Mich. L. Rev. 165, 214 (2008) (“[W]hen [originalist material] speaks in many voices, there is no way to settle the question of whether a view expressed in the Pennsylvania ratifying convention is more or less authoritative than a view expressed in the newspapers of Massachusetts.”).

  27. See, e.g., Lawson & Seidman, supra note 9, at 48 (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people—whether drafters, ratifiers, or commentators, however distinguished and significant within the drafting and ratification process they may have been—but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); cf. Solum, Triangulating Public Meaning, supra note 6, at 1637 (“Original public meaning should be distinguished from what have been called ‘original expected application[s].’”).

  28. U.S. Const. art. I, § 3, cl. 1.

  29.  This usage echoes Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 284–85 (2009) (positing that legislators should be assumed to vote for legislation with the “minimal intention” to make law that will be “understood” in accordance with the norms of “their legal culture”).

  30. Ryan C. Williams, The Ninth Amendment as a Rule of Construction, 111 Colum. L. Rev. 498, 544 (2011), proposes a test along these lines. For discussion of the details and implications of his proposal, see infra notes 207–08 and accompanying text.

  31. See, e.g., Jack M. Balkin, Living Originalism 21 (2011) (defending “framework originalism”) [hereinafter Balkin, Living Originalism]; Jack M. Balkin, The Construction of Original Public Meaning, 31 Const. Comment. 71, 80 (2016) [hereinafter Balkin, Construction].

  32. See infra Section I.A.

  33. U.S. Const. amend. II. See District of Columbia v. Heller, 554 U.S. 570, 576 (2008) (grounding the conclusion that the Second Amendment protects a personal right to possess arms for self-defense in “the principle that ‘[t]he 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’” (quoting United States v. Sprague, 282 U.S. 716, 731 (1931))); id. at 652–79 (Stevens, J., dissenting) (analyzing Second Amendment’s historical context and concluding that any rights that it created were linked to service in a well-regulated militia); see also Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 Harv. L. Rev. 246, 246 (2008) (“Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning.”); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 924 (2009) (contending that Heller offered “the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court”).

  34. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 385–93 (2010) (Scalia, J., concurring) (emphasizing majority opinion’s consistency with original public meaning of the First Amendment); id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (disputing this analysis); see also Leo E. Strine, Jr. & Nicholas Walter, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, 91 Notre Dame L. Rev. 877, 878 (2016) (providing an overview of the historical dispute between the two opinions).

  35. See, e.g., Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”); id. at 726 (Thomas, J., dissenting) (charging the Court with “los[ing] its way” in “deviating from the original meaning of the [Due Process] Clauses”); cf. Calabresi & Begley, supra note 6, at 652–54 (2016) (challenging Justice Thomas’s approach and offering originalist defense of Obergefell).

  36. On the distinction between the metaphysics of meaning and the epistemological issues involved in its ascertainment, see Michael Devitt, Three Methodological Flaws of Linguistic Pragmatism, in What Is Said and What Is Not: The Semantics/Pragmatics Interface 285, 285–86 (Carlo Penco & Filippo Domaneschi eds., 2013).

  37. Cf. Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529, 601–02 (2008) (noting the pointlessness of seeking to establish “the standard of proof necessary to establish a ‘fact’ that never existed”).

  38. A comparison with other contexts in which the law employs “reasonable person” standards confirms this conclusion. The most characteristic function of “reasonable person” standards is to embody reasonableness in a particular domain of thought, action, or disposition. See Christopher Jackson, Reasonable Persons, Reasonable Circumstances, 50 San Diego L. Rev. 651, 655 (2013) (quoting Peter Westen, Individualizing the Reasonable Person in Criminal Law, 2 Crim. L. & Phil. 137, 139 (2008)) (asserting that “[a] reasonable person is reasonableness rendered incarnate”). In seeking to resolve disputed questions, the reasonable person pursues the methods of inquiry appropriate to achievement of true beliefs about the matter in question. See John Gardner, The Mysterious Case of the Reasonable Person, 51 U. Toronto L.J. 273, 273 (2001) [hereinafter Gardner, The Mysterious Case] (defining the “reasonable person” as a “justified” person whose actions satisfy the standards of justification appropriate for actions of the relevant kind and whose beliefs are similarly justified); John Gardner, Reasonable Person Standard, in The International Encyclopedia of Ethics (Hugh LaFollette ed., 2019) (“When the law’s question is what the reasonable person would [believe], the answer is that she would have reasonable [beliefs].”). The deep, underlying assumption is that true beliefs are possible.

  39. Cf. Balkin, Construction, supra note 30, at 78 (terming the original public meaning “a constructed entity”); Jack M. Balkin, Lawyers and Historians Argue About the Constitution, 35 Const. Comment. 345, 369 (2020) (“‘Original public meaning’ is a theoretical construction, a mediated account of the past that serves the purposes of law and legal theory.”).

  40. See, e.g., Richard S. Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. Rev. 703, 720 (2009) (“Public meaning is, quite explicitly, an artificial construct. The qualifying criteria . . . depend on assumptions about how some chosen hypothetical speaker of the language would apprehend the text at issue. Even in theory there is no ‘right answer.’”). According to Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. (forthcoming Dec. 2021) (manuscript at 52) (on file with author) [hereinafter Solum, Public Meaning Thesis], “When there is controversy over the public meaning, we aim for the interpretation that best explains all the available evidence.” Although this formulation presupposes the existence of a theory that identifies some “evidence” as relevant and supports inferences about the relationship of evidence to conclusions, Professor Solum never articulates the theory on which he relies.

  41. In listing moral norms among the factors relevant to legal reasoning, I assume that insofar as authoritative legal materials otherwise fail to provide an answer to a legally disputed questions, a judge should adopt the legally eligible answer that would be morally best. See, e.g., Joseph Raz, Incorporation by Law, 10 Legal Theory 1 (2004).

    For a different argument from mine to the shared conclusion that disputed constitutional provisions typically lack uniquely correct and determinate linguistic meanings, see Frederick Mark Gedicks, The ‘Fixation Thesis’ and Other Falsehoods, 72 Fla. L. Rev. 219, 223–24 (2020) (arguing that belief in original public meanings represents an ontological mistake because “[t]he meaning of any text from the past is also shaped by the demands of the interpreter” with the result that “in the present[,] textual meaning is mutually constituted by past and present”).

  42. Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xxiv (2019).

  43. Id.

  44. Crediting Foner’s specific factual claims, a public meaning originalist might say that even if Foner has shown that the communicative content of the Fourteenth Amendment was vague or underdeterminate in many relevant respects, this finding does not preclude PMO’s claim to be able to identify uniquely correct meanings, going beyond minimally necessary meanings, in some other cases of historical disagreement. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 52) (“[T]he case for Public Meaning Originalism would actually be quite strong if, at the end of the day, it turned out that only [the Privileges or Immunities and Equal Protection Clauses of the Fourteenth Amendment] were so underdeterminate that their original public meaning left almost all of the important contemporary questions in the construction zone.”). I reject that originalist response, for reasons given already. Original public meanings in the originalist sense are the artifacts of a model for the generation of linguistic meanings or communicative content that is too poorly specified to generate uniquely correct meanings in any historically debated or reasonably disputable case.

  45. Foner, supra note 41, at xxiv.

  46. See, e.g., Solum, supra note 12, at 18; Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 528 (2013) [hereinafter Solum, Originalism and Constitutional Construction]; Greene, supra note 6, at 1687–88.

  47. See Scalia, supra note 7 (arguing that originalists “ought to campaign to change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning”); see also Kesavan & Paulsen, supra note 7, at 1139 (characterizing Justice Scalia as “original meaning textualism’s patron saint”).

  48. See, e.g., Randy E. Barnett, Scalia’s Infidelity: A Critique of “Faint-Hearted” Originalism, 75 U. Cin. L. Rev. 7, 13–15 (2006); cf. Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921, 1942 (2017) (concluding that, “[t]o the extent [Justice Scalia] was occasionally faint hearted . . . who could blame him for being human?”).

  49. See Balkin, Living Originalism, supra note 30, at 31; Balkin, Construction, supra note 30, at 80 (advancing a “thin” conception of original public meaning that consists of “the original semantic meaning of the words, . . . taking into account any generally recognized terms of art, and any background context necessary to understand the text,” but not the “original expected application” of the text).

  50. See Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291, 294 (2007) (noting the availability of an originalist argument in support of abortion rights).

  51. See Balkin, Construction, supra note 30, at 86 (“I view constitutions as frameworks—they are a basic set of rules, standards and principles that are designed to create institutions and channel political action in order to make politics possible. Constitutions are designed to put politics in motion and cause people to solve their problems through politics as opposed to through violence and civil war.”).

  52. See Solum, Communicative Content, supra note 16, at 485 (“Legal communications are ‘utterances’ in the broad sense of that word, which encompasses both sayings and writings.”); Scott Soames, Deferentialism: A Post-Originalist Theory of Legal Interpretation, 82 Fordham L. Rev. 597, 598 (2013) [hereinafter Soames, Deferentialism] (“applying [the] lesson” learned from successful communication in more familiar speaker-to-listener contexts “to legal interpretation”); Soames, Originalism and Legitimacy, supra note 5, at 247 (explaining originalism’s extension of “a well-understood model of linguistic communication among individuals” to “lawmaking”).

  53. Scott Soames, Toward a Theory of Legal Interpretation, 6 N.Y.U. J.L. & Liberty 231, 232 (2011).

  54. Solum wrestles at length with the differences between conversational and constitutional interpretation in an unpublished paper, The Public Meaning Thesis, supra note 39 (manuscript at 12 & n. 45), but emphatically endorses what he calls the “Continuity Thesis,” which holds that constitutional interpretation is sufficiently continuous with conversational interpretation so that concepts developed to elucidate successful conversational interpretation, especially those traceable to Paul Grice, Studies in the Way of Words 3–143 (1989), should be adapted rather than abandoned. According to Solum, the principal necessary adjustment of the model of conversational interpretation involves the absence of a unitary speaker in the case of constitutional provisions. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 17) In a paper published in 2013, Solum maintained that provisions’ meanings might be based on “the semantic meaning of the text” in conjunction with “the publicly available context of constitutional communication.” Solum, Communicative Content, supra note 16, at 500. In the as-yet unpublished The Public Meaning Thesis, supra note 39 (manuscript at 36), he postulates that different speakers in the complex chain that begins with a drafter and includes ultimate ratifiers have meshing second-order intentions to adopt either the communicative intentions of the initial drafter or to communicate the public meaning of the text as it would appear to members of the provision’s intended public audience. For critical discussion of this proposal, see infra notes 147–49 and accompanying text.

  55. See Solum, Communicative Content, supra note 16, at 484; Soames, Originalism and Legitimacy, supra note 5, at 264 (defining “assertive content”); Soames, Deferentialism, supra note 51, at 598–600 (differentiating linguistic meaning from assertive content).

  56. Soames, Deferentialism, supra note 51, at 598.

  57. Solum, Originalist Methodology, supra note 15, at 277; see also Solum, Communicative Content, supra note 16, at 488 (“The full communicative content of a legal writing is a product of the semantic content (the meaning of the words and phrases as combined by the rules of syntax and grammar) and the additional content provided by the available context of legal utterance.”). In order to communicate successfully, an author must therefore anticipate what a reasonable reader will take her communicative intent to be in using the words that she uses. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 14).

  58. See, e.g., Solum, Communicative Content, supra note 16, at 488 (“In the philosophy of language and theoretical linguistics, the phrase ‘pragmatic enrichment’ is sometimes used to refer to the contribution that context makes to meaning.”); Andrei Marmor & Scott Soames, Introduction, in Philosophical Foundations of Language in the Law 1, 8 (Andrei Marmor & Scott Soames eds., 2011) (noting that the “assertive content” of utterances “is determined by a variety of factors, including the semantic content of the sentence uttered, the communicative intentions of the speaker, the shared presuppositions of the speaker-hearers, and obvious features of the context of utterance”).

  59. Solum, Communicative Content, supra note 16, at 488.

  60. Lawrence B. Solum, Intellectual History as Constitutional Theory, 101 Va. L. Rev. 1111, 1126 (2015) [hereinafter Solum, Intellectual History]; Solum, Originalist Methodology, supra note 15, at 285.

  61. See Solum, Communicative Content, supra note 16, at 488 (“In the philosophy of language and theoretical linguistics, the phrase ‘pragmatic enrichment’ is sometimes used to refer to the contribution that context makes to meaning.”).

  62. See Soames, Interpreting Legal Texts, supra note 12, at 403–04; Solum, Communicative Content, supra note 16, at 488.

  63. See infra notes 167–74 and accompanying text.

  64. Solum, Cooley’s Constitutional Limitations, supra note 10, at 57.

  65. Solum, Communicative Content, supra note 16, at 497–98 (defining public meaning as “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”).

  66. In his forthcoming article The Public Meaning Thesis, supra note 39 (manuscript at 50 n.160), Solum writes:

    One idea is that pragmatic enrichments should be assessed from the perspective of “a reasonable member of the ratifying public at the time of enactment.” This idea is consistent with Public Meaning Originalism, so long as we understand that the idea of “a reasonable member of the public” is a heuristic and not an account of the causal mechanism by which communicative content is conveyed.

  67. See, e.g., Chiafalo v. Washington, 140 S. Ct. 2136, 2335 (2020) (Thomas, J., concurring) (“[T]he Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning.”); Solum, Triangulating Public Meaning, supra note 6, at 1637 (“The meaning of a text is one thing; expectations about how the text will or should be applied to particular cases or issues is another.”); Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 BYU L. Rev. 1393, 1398 (arguing that “it is the semantic original public meaning of the enacted texts,” rather than expected applications that determine original meaning); Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 Tex. L. Rev. 1, 7 (2011) (distinguishing meaning from expected applications by noting that “sometimes legislators misapply or misunderstand their own rules”); Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611, 622 (1999) (noting that PMO is not concerned with “how the relevant generation of ratifiers expected or intended their textual handiwork would be applied to specific cases . . . except as circumstantial evidence of what the more technical words and phrases in the text might have meant to a reasonable listener”).

    In contrast with public meaning originalists, Professor Richard Kay has developed an approach that would fix original constitutional meanings based on overlapping intentions of majorities voting to ratify the Constitution in the various state ratifying conventions, but he identifies his approach as a version of original-intent-based, rather than OPM, originalism. See Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 247–51 (1988).

  68. See, e.g., Solum, Triangulating Public Meaning, supra note 6, at 1637.

  69. This example is adapted from Mark D. Greenberg & Harry Litman, The Meaning of Original Meaning, 86 Geo. L.J. 569, 585 (1998).

  70. In Triangulating Public Meaning, supra note 6, at 1665, Solum gives a complex example involving an “application belief” that the Fourteenth Amendment would not protect women’s equal rights to practice law based on “a false belief that women have intellectual capacities that are similar to those of children and, hence, that women are incapable of practicing law.” For other rejections of the equation of original public meanings with original expectations or application beliefs, see supra note 66 and accompanying text.

  71. See, e.g., Solum, Triangulating Public Meaning, supra note 6, at 1638.

  72. Solum, Originalist Methodology, supra note 15, at 278.

  73. Solum, Fixation Thesis, supra note 15, at 12. When originalists assert positions such as these, I do not take them to claim that no judgment is necessary, but that no normative judgment is either necessary or appropriate. For example, to determine whether the Constitution permits a President to pardon him- or herself, a judge might have to use judgment in ascertaining what a reasonable person would take the assertive content of the relevant language of Article II to be in light of its legal background and relationship to other constitutional provisions. Nonetheless, the answer that emerges from application of the model of conversational interpretation (as minimally modified) should not depend on a normative judgment about whether allowing presidents to pardon themselves would be desirable.

  74. See, e.g., Solum, Originalism and Constitutional Construction, supra note 45, at 458; Randy E. Barnett, Interpretation and Construction, 34 Harv. J.L. & Pub. Pol’y 65, 67 (2011) [hereinafter Barnett, Interpretation and Construction].

  75. Soames, Originalism and Legitimacy, supra note 5, at 249.

  76. Solum, Originalism and Constitutional Construction, supra note 45, at 536; see also Solum, Public Meaning Thesis, supra note 39 (manuscript at 4–5) (noting the need for constitutional “construction” in cases involving linguistically underdeterminate provisions).

  77. See, e.g., Barnett, Interpretation and Construction, supra note 73, at 66, 69–70; see also, e.g., Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 5–6 (2018) (proposing one originalist model of judicial construction).

  78. Solum, Originalism and Constitutional Construction, supra note 45, at 472–73; Soames, supra note 52, at 243–44.

  79. Solum, Originalism and Constitutional Construction, supra note 45, at 457.

  80. Id.

  81. Id. at 458.

  82. See, e.g., Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 953, 956 (1995) (finding that original meaning of the Fourteenth Amendment barred school segregation); Robert G. Natelson, Paper Money and the Original Understanding of the Coinage Clause, 31 Harv. J.L. & Pub. Pol’y 1017, 1021–22 (2008) (maintaining, contrary to the contentions of others, that originalism authorizes a reading of the “coinage” clause that permits paper money).

  83. See Maximilian Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. (forthcoming 2022) (manuscript at 3–4) (on file with author).

  84. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 138–39 (1873).

  85. See Lawrence B. Solum, Surprising Originalism: The Regula Lecture, 9 ConLawNOW 235, 253–55 (2018).

  86. See Soames, Originalism and Legitimacy, supra note 5, at 275–85.

  87. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 649 (2012) (Scalia, J., dissenting) (examining “the original meaning of ‘regulate’ at the time of the Constitution’s ratification”); see also id. at 599–601, 610 (Ginsburg, J., concurring) (asserting that the Framers understood the commerce power, and the term “regulate,” more broadly).

  88. Compare, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 385–93 (2010) (Scalia, J., concurring), with id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (advancing a contrasting view of the original meaning of the Free Speech Clause). See also supra note 33 and accompanying text (noting additional contributors to the debate).

  89. See supra note 32.

  90. See supra note 34.

  91. See, e.g., Scalia & Garner, supra note 9, at 15 (“[T]his supposed distinction between interpretation and construction has never reflected the courts’ actual usage.” (emphasis omitted)).

  92. Antonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 129, 140 (Amy Gutmann ed., 1997).

  93. Solum, Originalism and Constitutional Construction, supra note 45, at 460.

  94. See id. at 460–61. Solum, in a recent article, specifies the Constraint Principle as requiring “that the norms of constitutional law should be consistent with and fairly derivable from the public meaning of the constitutional text.” Lawrence B. Solum, Themes from Fallon on Constitutional Theory, 18 Geo. J.L. & Pub. Pol’y 287, 292 (2020) [hereinafter Solum, Themes from Fallon]. Originalists including Randy Barnett, Gary Lawson, and Michael Stokes Paulsen take similar if not even more uncompromising positions. See, e.g., Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 Const. Comment. 257, 269 (2005); Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol’y 23, 24 (1994); Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Const. Comment. 289, 291 (2005).

  95. Foner, supra note 41, at 11.

  96. Id. at 57.

  97. Id. at 78.

  98. Id.

  99. Id. at 6–7.

  100. Id. at 73.

  101. Id. at 62–65

  102. Id. at 63.

  103. Id. at 63–65.

  104. Id. at 63–66.

  105. Id. at 66.

  106. Id. at 19.

  107. Id. at 89.

  108. See William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 51–53 (1988) (noting the possibility that Joint Committee on Reconstruction may have deliberately adopted “a phrasing that was sufficiently broad so that those who favored federal protection of political rights could construe it to provide such protection, and sufficiently innocuous so that those who opposed giving such power to the federal government could be reassured that the amendment did no such thing”); Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 61 (1955) (suggesting that “the Moderates and the Radicals reached a compromise permitting them to go to the country with language which they could, where necessary, defend against damaging alarms raised by the opposition, but which at the same time was sufficiently elastic to permit reasonable future advances”).

  109. Foner, supra note 41, at 91.

  110. See Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575, 588 (2011) (“It is one thing, after all, to suppose that words fraught with political content retain a relatively fixed meaning in quiet times, but it is quite another to apply that assumption to a period like the late 1780s or the Revolutionary era more generally.”).

  111. Id. at 593.

  112. See infra Subsection III.B.1.

  113. See Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention 240 (2015); see also Saul Cornell, Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard, 29 Const. Comment. 383, 405 (2014) (“Given the contentious nature of Founding era legal culture it seems unreasonable to assume that one can identify a single set of assumptions and practices from which to construct an ideal reasonable reader who could serve as model for how to understand the Constitution in 1788.”).

  114. See Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era 4–9 (2018).

  115. Id. at 5.

  116. See id. at 9–10.

  117. See, e.g., Kesavan & Paulsen, supra note 7, at 1115.

  118. See also Colby, supra note 36, at 535 (observing that “as a natural consequence of the constitution-making process, a constitutional provision addressing a deeply controversial subject can only hope to be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single meaning, it appeals to disparate factions with divergent understandings of its terms”).

  119. Solum, Triangulating Public Meaning, supra note 6, at 1624–25.

  120. Solum refers to the drafting history of the Fourteenth Amendment as potentially relevant to its public meaning in his article on triangulation. Id. at 1656–57 & n.74. But Solum has also dismissed the work of another estimable historian, Jack Rakove, as largely irrelevant to the project of discerning original public meanings:

    Work by the eminent constitutional historian Jack Rakove reflects immersion in the framing period, but Rakove’s Original Meanings does not focus on the communicative content of the text—indeed, the text is rarely quoted and never (or almost never) parsed for its communicative content. Like most intellectual historians, Rakove’s primary concern is with motivations, ideology, and ideas, and not with the semantics or pragmatics of the Constitution.

    Id. at 1653–54. If a similar response were directed toward Foner, it might have a patina of plausibility, but no more. Foner specifically writes about the language of the Fourteenth Amendment, the specific concerns and motivations of the language’s authors, and about public debates in Congress about which an informed person might know. See supra notes 94–104 and accompanying text.

  121. See Maggs, supra note 3, at 495, 511.

  122. Id. See also Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 300–02 (2009) (observing that Justice Thomas “seems not to contemplate any distinction among original intent, original understanding, and original textual meaning”).

  123. See supra Subsection I.A.1.

  124. U.S. Const. amend. XIV, § 1.

  125. Compare Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 26 (2004) (“[T]he original understanding of the Fourteenth Amendment plainly permitted school segregation.”), with McConnell, supra note 81, at 956–57 (maintaining that the original public meaning of the Fourteenth Amendment forbade school segregation), and Soames, Originalism and Legitimacy, supra note 5, at 275–85 (same).

  126. See Foner, supra note 41, at 137–39 (noting debates about women’s rights under the Fourteenth Amendment).

  127. See Brown v. Board of Education, 347 U.S. 483, 495 (1954) (“[S]egregation is a denial of the equal protection of the laws.”); United States v. Virginia, 518 U.S. 515, 530–46 (1996) (holding that a state’s exclusion of women from a unique educational opportunity violated the Equal Protection Clause); Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 421–22 (1960) (characterizing Brown as turning on whether “a massive intentional disadvantaging” of a group on the basis is race was compatible with the commands of the Equal Protection Clause); Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427, 432 (1997) (maintaining that “nearly no one today is a true equal protection originalist, because true equal protection originalism would repudiate Brown v. Board of Education”).

  128. Foner, supra note 41, at xxiv.

  129. See Frank Jackson, From Metaphysics to Ethics: A Defense of Conceptual Analysis 33 (1998) (arguing “concept” refers to “the possible situations covered by the words we use to ask our questions”); see also David Plunkett, Which Concepts Should We Use?: Metalinguistic Negotiations and the Methodology of Philosophy, 58 Inquiry 828, 846 (2015) (“[I]ndividual concepts are roughly the equivalent in mental representation to what individual words are in linguistic representation.” (emphasis omitted)).

  130. For the thesis that there are many such disputes that are best classified as involving “metalinguistic” disputes or negotiations about how we ought to use words, rather than involving empirical claims about semantic meanings, see Plunkett, supra note 128, at 837–38; David Plunkett & Tim Sundell, Disagreement and the Semantics of Normative and Evaluative Terms, 13 Philosophers’ Imprint 1, 2–3 (2013). See also Richard, supra note 19, at 3 (arguing that there are multiple possible conceptions of meaning, the most useful of which for many purposes will equate meaning with “interpretive common ground” among competent speakers of a language, and that meaning in this sense is “species-like” and evolving).

  131. See supra notes 109–15 and accompanying text.

  132. See W.B. Gallie, Essentially Contested Concepts, 56 Proceedings of the Aristotelian Society 167, 169 (1956) (defining “essentially contested concepts” as “concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users”).

  133. In the case of normative and evaluative terms, I assume that disagreement will normally involve the terms’ semantics, not pragmatics. See Plunkett & Sundell, supra note 129, at 8.

  134. See John Rawls, A Theory of Justice 5 (1971).

  135. See Ronald Dworkin, Taking Rights Seriously 133–36 (1977).

  136. See Rawls, supra note 133.

  137. See, e.g., Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 223–26, 320–21 (2021) (arguing concluding that the original meaning of the Equal Protection Clause involved a guarantee of nondiscriminatory enforcement of the laws as written and governmental protection against private lawbreaking and that guarantees against unequal distribution of rights through the content of the written laws came from the Privileges or Immunities Clause).

  138. See id. at 205–26 (discussing and rejecting five rival theories about the meaning of the Privileges or Immunities Clause).

  139. U.S. Const. amend. XIV, § 1.

  140. Soames, Deferentialism, supra note 51, at 597–98.

  141. Solum, Intellectual History, supra note 59, at 1126; Solum, Originalist Methodology, supra note 15, at 285.

  142. Soames, Deferentialism, supra note 51, at 598.

  143. Foner, supra note 41, at 68–71, 86–87.

  144. Id. at 70.

  145. Id. at 88, 91.

  146. There are serious questions about whether the ratification of the Fourteenth Amendment complied with the requirements of Article V of the Constitution. See, e.g., Thomas B. Colby, Originalism and the Ratification of the Fourteenth Amendment, 107 Nw. U. L. Rev. 1627, 1629 (2013). It was drafted by a Congress from which representatives of the Southern states were excluded, and those states, which were under military rule, were required to ratify it as a condition of their regaining congressional representation. For a defense of the constitutional lawfulness of the drafting and ratification processes, see John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L. Rev. 375, 378 (2001).

  147. The problem of combining or aggregating the intentions of multiple authors or speakers was initially raised in Brest, supra note 20, at 213–14. For a more recent, insightful discussion of “the summing problem,” see, for example, Gregory Bassham & Ian Oakley, New Textualism: The Potholes Ahead, 28 Ratio Juris 127, 138–41 (2015).

  148. Solum, Themes from Fallon, supra note 93, at 305–06; see also Solum, Communicative Content, supra note 16, at 500 (“Given that the framers and ratifiers believed that readers engaged in American constitutional practice would know the public context and that they would also know that the framers and ratifiers would believe that they would have such knowledge, the public context satisfies the conditions for common knowledge and can successfully determine clause meaning.”).

  149. The textualist/originalist Dean John Manning adopts a similar strategy. See, e.g., John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397, 2405–12 (2017).

  150. See generally Plunkett & Sundell, supra note 129, at 16 (“[I]t should be uncontroversial that at least one crucial type of data for figuring out what a speaker means by a term T are facts about the speaker’s usage of T—patterns of usage that reflect her disposition to apply that term one way or another, more generally.”).

  151. See supra note 106 and accompanying text.

  152. Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. (forthcoming 2022), argues that the prime ambition of originalism is to provide a “standard” for constitutional correctness and that it should not be faulted for failing to furnish a detailed “decision procedure” for finding the correct answer in individual constitutional cases. Sachs, however, writes in defense of a version of originalism that equates original meanings with original legal meanings, not original public meanings. See id. (manuscript at 17, 20). I shall address versions of originalism that are concerned with original legal meanings below. My argument here is that PMO fails to furnish even a “standard” in Sachs’s sense insofar as it posits the existence of, but gives no account of what constitutes, “original public meanings” that extend beyond the “minimal” meanings on which virtually all competent language users would converge.

  153. See, e.g., Scalia & Garner, supra note 9, at 15–16; Antonin Scalia, Originalism: The Lesser Evil, 57 Cin. L. Rev. 842, 862 (1989).

  154. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636–37 (1987) (Scalia, J., dissenting).

  155. Scalia, supra note 91, at 17 (“We look for a sort of ‘objectified’ intent—the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.”); see John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 423 (2005) [hereinafter Manning, Textualism and Legislative Intent] (“[T]extualists have sought to devise a constructive intent that satisfies the minimum conditions for meaningfully tracing statutory meaning to the legislative process.”); Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 353–57 (2005).

  156. See Seana Valentine Shiffrin, Speech, Death, and Double Effect, 78 N.Y.U. L. Rev. 1135, 1155 (2003) (employing an “objective notion of intention as it is made manifest through the performance of actions of a certain type, actions that, because of what they involve, are typically motivated by a certain rationale and are reasonably interpreted as being so motivated”); see also Kay, supra note 39, at 708 (“Mainly, we know someone’s intended meaning by examining the typical meaning attached to the words they used.”).

  157. U.S. Const. amend. I (emphasis added).

  158. See Rakove, supra note 109, at 584; Kay, supra note 39, at 720.

  159. Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013).

  160. Id. at 327 (Thomas, J., concurring) (citation omitted).

  161. See, e.g., supra note 146 and accompanying text.

  162. Soames, Deferentialism, supra note 51, at 597–98; see also Soames, supra note 52, at 241 (“Since what language users intend to say, assert, or stipulate is a crucial factor, along with the linguistic meanings of the words they use, in constituting what they do say, assert, or stipulate, the intentions of lawmakers are directly relevant to the contents of the laws they enact.”).

  163. Soames, Originalism and Legitimacy, supra note 5, at 248.

  164. Leading works in developing accounts of group agency and group intention include Michael E. Bratman, Faces of Intention (1999) and Christian List & Philip Pettit, Group Agency (2011).

  165. Ryan D. Doerfler, Who Cares How Congress Really Works?, 66 Duke L.J. 979, 1009 (2017).

  166. See supra Subsection I.B.1.

  167. See supra note 147 and accompanying text.

  168. This discussion draws on Foner’s claims as introduced in supra Subsection I.B.1.

  169. See Gardner, The Mysterious Case, supra note 37, at 299 (noting that “the resort to a reasonableness standard is” often a way “to reopen a bit of space for ordinary moral reasoning in a rule that would otherwise be apt to level it away”); see also Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. Rev. 323, 326–28 (2012) (arguing that it is impossible to construct an analytically rigorous descriptive account of the reasonable person); Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2150 (2015) (“[W]hat counts as a reasonable person is itself a question with significant normative content.”).

  170. Cf. Ronald Dworkin, Law’s Empire 51–53 (1986) (advancing a theory of “constructive interpretation” that depends on mixed criteria of fit and normative attractiveness); Larry A. DiMatteo, The Counterpoise of Contracts: The Reasonable Person Standard and the Subjectivity of Judgment, 48 S.C. L. Rev. 293, 336, 350 (1997) (observing that “[t]he reasonable person” of contract law, who “must decide if the parties had an intent to create a contract and to give meaning to that intent,” “can be seen as a synthesis of legal and community values”).

  171. See supra notes 71–72 and accompanying text.

  172. Cf. Lawson & Seidman, supra note 9, at 73 (“This person is highly intelligent and educated and capable of making and recognizing subtle connections and inferences. This person is committed to the enterprise of reason, which can provide a common framework for discussion and argumentation. This person is familiar with the peculiar language and conceptual structure of the law.”); Calabresi & Rickert, supra note 66, at 8 n.33 (“The need for courts to construct an objective original public meaning of enacted texts resembles the need for courts in tort cases to ask what a reasonable person might have done in a given situation.”).

  173. Solum, Triangulating Public Meaning, supra note 6, at 1667.

  174. Id. at 1668.

  175. See, e.g., Bassham & Oakley, supra note 146, at 141 (“[W]hen we are asking what proposition an ‘informed, reasonable reader’ would have understood a certain string of words to express, no clear answer may emerge. Equally informed and equally reasonable readers may have understood the words very differently.”).

  176. See Solum, Triangulating Public Meaning, supra note 6, at 1656.

  177. See Solum, Communicative Content, supra note 16, at 497–98 (equating public meaning with “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”).

  178. Solum, Triangulating Public Meaning, supra note 6, at 1678.

  179. See id. at 1639–40.

  180. Id. at 1640.

  181. Solum also acknowledges that “the actual text of the U.S. Constitution contains general, abstract, and vague provisions that require constitutional construction for their application to concrete constitutional cases.” Solum, Originalism and Constitutional Construction, supra note 45, at 458.

  182. See, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 192–208 (2004) (criticizing the Slaughter-House Cases for betraying the original meaning of the Fourteenth Amendment).

  183. Solum, Originalism and Constitutional Construction, supra note 45, at 530 (footnote omitted).

  184. 83 U.S. (16 Wall.) 130, 139 (1873).

  185. See Foner, supra note 41, at 137; see also Solum, Triangulating Public Meaning, supra note 6, at 1665–66 (rejecting “application belief” that the Fourteenth Amendment would not protect women’s equal rights to practice law predicated on “a false belief that women have intellectual capacities that are similar to those of children and, hence, that women are incapable of practicing law”).

  186. Solum, Triangulating Public Meaning, supra note 6, at 1666.

  187. Chief Justice Chase, who dissented in Bradwell, may have shared it. See Foner, supra note 41, at 137.

  188. U.S. Const. amend. XIV, § 2.

  189. See Foner, supra note 41, at 80–83, 136–39.

  190. Cf. Balkin, Construction, supra note 30, at 92 (“[I]n any age or era—as in our own—reasonable people often differ about many things, especially where politics is involved.”).

  191. Soames, Originalism and Legitimacy, supra note 5, at 262.

  192. U.S. Const. art. I, § 3.

  193. See supra note 159 and accompanying text.

  194. See, e.g., Klarman, supra note 124, at 25–26, 146.

  195. Solum, Triangulating Public Meaning, supra note 6, at 1656; see also Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 557 (2003) (“[M]odern originalist scholarship often uses the actual understandings expressed by individual framers or ratifiers as evidence of the ‘original meaning.’”); Gregory E. Maggs, A Guide and Index for Finding Evidence of the Original Meaning of the U.S. Constitution in Early State Constitutions and Declarations of Rights, 98 N.C. L. Rev. 779, 779 (2020) (“This Article provides a concise guide to this practice of finding evidence of the original meaning in these early state constitutions and declarations of rights.”).

  196. Gary Lawson, Legal Indeterminacy: Its Cause and Cure, 19 Harv. J.L. & Pub. Pol’y 411, 418 (1995).

  197. Id. at 421.

  198. For a discussion, see supra Subsection I.A.2.

  199. See supra Introduction.

  200. U.S. Const. amend. IV, § 1.

  201. In a discussion of my criticism of PMO in The Public Meaning Thesis, supra note 39, Professor Solum labors at length to refute the proposition that “successful pragmatic enrichment and contextual disambiguation are impossible (or very rare)” in the constitutional context because “the public lacked needed information about the drafters of individual constitutional provisions.” Id. (manuscript at 45). Although I agree with much of his discussion of this point, I have not argued that successful pragmatic enrichment is impossible or necessarily even “very rare” in the case of the Constitution, only that proponents of PMO have failed to establish how claims that determinate constitutional meanings exist as matters of linguistic fact could extend beyond minimally necessary and noncontroversial meanings and non-meanings. In The Public Meaning Thesis, the central examples on which Professor Solum relies to show that pragmatic enrichment can occur even when listeners have only minimal biographical information about a speaker or drafter involve inferences by imagined audiences that he expects all of his readers to concur in. Such examples elide the difficulty of specifying truth conditions for disputed claims about constitutional provisions’ pragmatically enriched meanings.

    With respect to the contextually enriched meanings of disputed provisions, Solum’s fullest statement in Public Meaning Originalism is as follows:

    As a matter of interpretation, the actual communicative content of the constitutional text is what it is—as a matter of fact. Some contextual enrichments are publicly accessible even though they may not have been “obvious” in the sense that recognizing them might require thought and reflection. Other contextual enrichments may exist, even though they were controversial—because controversy can be generated by motivated reasoning or bad faith argumentation driven by ideology or interest. Finally, many pragmatic enrichments are not based on the particular language of the specific constitutional provision, but instead arise the interaction between the purpose of the provision and background assumptions or between one provision and overall constitutional structure.

    Solum, Public Meaning Thesis, supra note 39 (manuscript at 51).

    By beginning this passage with an assertion that the communicative content of a constitutional provision is both a “a matter of fact” and “a matter of interpretation,” Solum appears to acknowledge that the “fact” of an original public meaning, going beyond minimally necessary and noncontroversial meaning, depends on a theory that permits the judging of proposed interpretations as correct or incorrect, but he never articulates what in the world makes it true that one interpretation is correct and another incorrect in reasonably disputed cases (not involving motivated reasoning or the like).

  202. See supra notes 25–26 and accompanying text.

  203. See, e.g., Josh Pasek & Jon A. Krosnick, Optimizing Survey Questionnaire Design in Political Science: Insights From Psychology, in The Oxford Handbook of American Elections and Political Behavior 32, 35–36, 38–39 (Jan E. Leighley ed., 2010).

  204. See supra notes 66–67 and accompanying text.

  205. See, e.g., Solum, supra note 84, at 253–55; Calabresi & Matthews, supra note 66, at 1398 (arguing that “it is the semantic original public meaning of the enacted texts,” rather than expected applications, that determines original public meaning).

  206. Cf. Bostock v. Clayton County, 140 S. Ct. 1731, 1750–54 (2020) (distinguishing original linguistic meaning from expected applications in the context of statutory interpretation).

  207. The classic source on modalities of constitutional argument is Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982).

  208. Williams, supra note 29, at 532–33.

  209. Id. at 544.

  210. Solum, Public Meaning Thesis, supra note 39 (manuscript at 51) (acknowledging that “in a prior version of this paper, I stated that my position was ‘very close’ to Williams”).

  211. Id.

  212. See supra notes 174–88 and accompanying text.

  213. See Foner, supra note 41, at 145–74 (discussing Fourteenth Amendment cases coming before the Supreme Court during Reconstruction and its aftermath).

  214. See generally Randy E. Barnett & Evan D. Bernick, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 Notre Dame L. Rev. 499, 507 (2019) (critiquing Lash’s “enumerated-rights-only” theory of the Privileges or Immunities Clause on originalist grounds); Kurt T. Lash, The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick, 95 Notre Dame L. Rev. 591, 593 (2019) (drawing on a “substantial body of preratification evidence” to advance contrary arguments, and contending that “[a]ll postratification evidence is necessarily weak as a source of original understanding”); Randy E. Barnett & Evan D. Bernick, The Difference Narrows: A Reply to Kurt Lash, 95 Notre Dame L. Rev. 679, 679 (2019) (offering a sur-reply to Lash and, in recognition of the historically complex dueling claims, “forgiv[ing] readers for having difficulty adjudicating this dispute”).

  215. 410 U.S. 113 (1973).

  216. See, e.g., Antonin Scalia, Session Three: Religion, Politics and the Death Penalty, Pew Rsch. Ctr. (Jan. 25, 2002), https://www.pewforum.org/2002/01/25/session-three-religion-politics-and-the-death-penalty/ [https://perma.cc/FK5N-WZV2] (quoting Justice Scalia as saying: “[M]y difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe—and no one believed for 200 years—that the Constitution contains a right to abortion.”).

  217. See Balkin, supra note 49, at 292 (maintaining that conventional critiques of Roe as unmoored from constitutional text are wrong).

  218. See supra notes 66–69 and accompanying text.

  219. See Balkin, supra note 49, at 292, 311–36 (elaborating these arguments); see also id. at 321–22 (“The original meaning of the Fourteenth Amendment . . . therefore presents no bar to the conclusion that sex discrimination violates the Constitution. The text of section 1 does not exclude women from its protections, and the underlying principle of equal citizenship applies to men and women equally.”).

  220. See supra notes 78–80 and accompanying text.

  221. See Solum, Originalist Methodology, supra note 15, at 293.

  222. See Barnett & Bernick, supra note 136, at 8–9.

  223. Id. at 227.

  224. Id. at 228.

  225. The phrase comes from Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 874–75 (2015) (advancing a theory of originalism that calls for adherence to “the Founders’ law, as lawfully changed” since the Founding).

  226. William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1082–83 (2017).

  227. William Baude & Stephen E. Sachs, Originalism and the Law of the Past, 37 Law & Hist. Rev. 809, 818–19 (2019).

  228. See Sachs, supra note 6, at 158. A close cousin of original-law originalism is the theory of original-methods originalism advanced by Professors John McGinnis and Michael Rappaport, which advocates interpreting the Constitution in accordance with the interpretive rules and methods that lawyers would have applied at the time of constitutional provisions’ adoption. John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 118 (2013). The authors believe that a variety of interpretive techniques that are either dictated by or consistent with the original law of interpretation would result in the size of the “construction zone” being relatively small. See John O. McGinnis & Michael B. Rappaport, The Power of Interpretation: Minimizing the Construction Zone, 96 Notre Dame L. Rev. 919 (2021).

  229. See Baude & Sachs, supra note 225, at 1083 (“[C]ontrary to the skeptics, extracting legal content from a written instrument needn’t involve much direct normative judgment. In fact, it usually doesn’t.”).

  230. See, e.g., Gienapp, supra note 113, at 116–23 (describing chaotic uncertainty about appropriate interpretive rules for the Constitution based on deeper uncertainty about what kind of document the Constitution was); Farah Peterson, Expounding the Constitution, 130 Yale L.J. 2, 2–3 (2020) (maintaining that litigants in early constitutional cases in the Supreme Court disputed whether the Constitution should be interpreted according to restrictive rules applicable to private legislation or the more flexible and pragmatic rules applicable to public legislation); Balkin, Construction, supra note 30, at 98; Larry Kramer, Two (More) Problems with Originalism, 31 Harv. J.L. & Pub. Pol’y 907, 912–13 (2008); Nelson, supra note 194, at 555–56, 561, 571–73.

  231. See Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court 130–32 (2018) (asserting the importance of argument in good faith to the legal and moral legitimacy of judicial decision making).

  232. 140 S. Ct. 2183 (2020).

  233. See, e.g., Saikrishna Prakash, Removal and Tenure in Office, 92 Va. L. Rev. 1779, 1815–45 (2006) (making a “sustained case” for a presidential removal power); Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1, 3, 6 (2020) (countering claims of some originalists that the Appointments Clause requires a presidential power to remove high federal officials by showing that the First Congress, with the approval of President George Washington and Treasury Secretary Alexander Hamilton, created a Sinking Fund Commission some of whose members enjoyed protection from presidential removal). Compare Seila Law, 140 S. Ct. at 2198–201 (affirming “the President’s general removal power” and noting only “two exceptions to the President’s unrestricted removal power” as articulated in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) and Morrison v. Olson, 487 U.S. 654 (1988)), with id. at 2226–31 (Kagan, J., concurring in part and dissenting in part) (emphasizing that the Constitution says “nothing at all” about the President’s removal power, and accusing the majority of “extrapolat[ing] an unrestricted removal power from such general constitutional language” which is “more than the text will bear” (alteration in original) (internal quotations omitted)). For examples of Founding-era disagreement over executive removal authority, see, e.g., The Federalist No. 77, at 459 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (asserting “[t]he consent of [the Senate] would be necessary to displace as well as to appoint” officers of the United States). Compare also Seila Law, 140 S. Ct. at 2205, with id. at 2229 n.4 (Kagan, J., concurring in part and dissenting in part) (disagreeing about the importance of Federalist No. 77).

  234.  567 U.S. 519 (2012).

  235. Compare id. at 550–51 & n.4 (suggesting “the language of the Constitution” and the Framing’s historical context together distinguished action from inaction), with id. at 610 (Ginsburg, J., concurring in part and dissenting in part) (contesting this history). But cf. David A. Strauss, Commerce Clause Revisionism and the Affordable Care Act, 2012 Sup. Ct. Rev. 1, 8–9 (arguing Necessary and Proper Clause obviated need for such historical analysis).

  236. See Alison L. LaCroix, The Shadow Powers of Article I, 123 Yale L.J. 2044, 2058–60 (2014) (discussing the scope of the Necessary and Proper Clause and whether it can be considered an enumerated power). Compare, e.g., Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 16–18 (2010) (articulating the view that the Framers used the term “commerce” at the Constitutional Convention broadly to include things like navigation, and calling a narrower conception “anachronistic”), with Barnett, Commerce Clause, supra note 9, at 104 (arguing that at the Constitutional Convention “the term ‘commerce’ was consistently used in the narrow sense and that there is no surviving example of it being used . . . in any broader sense”).

  237. U.S. Const. art. I, § 8, cl. 18.

  238. See, e.g., J. Randy Beck, The New Jurisprudence of the Necessary and Proper Clause, 2002 U. Ill. L. Rev. 581, 588–603; John Harrison, Enumerated Federal Power and the Necessary and Proper Clause, 78 U. Chi. L. Rev. 1101, 1125–26 (2011); see also Gienapp, supra note 113, at 90–92 (discussing disagreements between Anti-Federalists and Federalists during ratification debates).

  239. 558 U.S. 310 (2010).

  240. Compare id. at 385–93 (Scalia, J., concurring) (defending “the conformity of [the majority] opinion with the original meaning of the First Amendment”), with id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (disputing this analysis).

  241. U.S. Const. amend. I; see Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech, 86 Ind. L.J. 1, 9–22 (2011); see also Thomas F. Carroll, Freedom of Speech and of the Press in the Federalist Period; The Sedition Act, 18 Mich. L. Rev. 615, 627–37 (1920) (discussing early interpretations of the First Amendment and Congress’s ability to regulate the press).

  242. See Leonard W. Levy, Emergence of a Free Press, at xii–xv (1985); see also David A. Strauss, The Living Constitution 61 (2010) (suggesting “the First Amendment was not understood to outlaw prosecutions for seditious libel”).

  243. See generally, e.g., Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246 (2017) (arguing that speech and press freedoms in the Founding era were expansive in scope but weak in legal effect); Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2169–71 (2015) (arguing that early American courts employed a “broad but shallow” approach to the First Amendment under which speech that was not categorically excluded from constitutional protection could be penalized if it posed a “threat to the public order”).

  244. 554 U.S. 570 (2008).

  245. See id. at 605 (analyzing purported original public meaning of Second Amendment); id. at 652–79 (Stevens, J., dissenting) (challenging this analysis).

  246. Compare Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343 (2009) (arguing that while Heller reached the correct originalist result, its reasoning was incomplete), with Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 686, 688 (2007) (arguing that a “reasonableness” standard is consistent with the original understanding of the Second Amendment).

  247. Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013).

  248. Id. at 327–28 (Thomas, J., concurring).

  249. See, e.g., Klarman, supra note 124, at 25–26, 146.

  250. Solum, Originalism and Constitutional Construction, supra note 45, at 530.

  251. U.S. Const. art. I, § 8, cl. 1.

  252. Compare Alexander Hamilton, Report on Manufacturers (1791), reprinted in History of the United States: Political, Industrial, Social 506–07 (Charles Manfred Thompson ed., 1917) (arguing that Congress’s “power to raise money is plenary and indefinite”; that “[t]he terms ‘general welfare’ were doubtlessly intended to signify more than was expressed or imported in” the preceding list of congressional powers; and that as a result “[i]t is, therefore, of necessity, left to the discretion of the National Legislature to pronounce upon the objects which concern the general Welfare, and for which, under that description, an appropriation of money is requisite and proper”), with The Federalist No. 41 (James Madison) 262–63 (Clinton Rossiter ed., 1961) (arguing for a narrow construction of the clause, and describing Hamilton’s approach as a “misconstruction” that only “might have had some color” in a counterfactual where “no other enumeration or definition of the powers of the Congress been found in the Constitution”); see also, e.g., United States v. Butler, 297 U.S. 1, 64 (1936) (noting disagreement but concluding that “[t]he true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision for the general welfare”); 1 Joseph Story, Commentaries on the Constitution of the United States § 922, at 672–73 (Melville M. Bigelow ed., William S. Hein & Co. 5th ed. 1994) (1833); Herman J. Herbert, Jr., Comment, The General Welfare Clauses in the Constitution of the United States, 7 Fordham L. Rev. 390, 396–403 (1938).

  253. See generally Julian Davis Mortenson, Article II Vests the Executive Power, not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019) (arguing for a narrow reading of the executive vesting clause); see also Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701 (arguing the original public meaning of the executive vesting clause was merely the power to execute the law); cf. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1175–79 (1992) (arguing that the executive vesting clause incorporates a broad understanding of executive power).

  254. See David Luban, On the Commander in Chief Power, 81 S. Cal. L. Rev. 477, 483–84 (2008) (“The Commander in Chief Clause is a sphinx, and specifying its powers and the theory generating them is its riddle.”); see generally Richard A. Epstein, Executive Power, the Commander in Chief, and the Militia Clause, 34 Hofstra L. Rev. 317 (2005) (evaluating various views of the commander in chief power); Jesse H. Choper, Michael C. Dorf, Richard H. Fallon, Jr. & Frederick Schauer, Constitutional Law 213–17 (13th ed. 2019) (noting and summarizing debate over the scope of executive war powers).

  255. See, e.g., Gienapp, supra note 113, at 92–95 (noting Anti-Federalists’ on Article III’s provision for judicial power as dangerously “imprecise”). Among the specific disputes that persisted after ratification involved whether the judicial power encompassed a power to develop a federal common law of crimes. See, e.g., Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart & Wechsler’s the Federal Courts and the Federal System 638–42 (7th ed. 2015).

  256. Compare, e.g., United States v. Windsor, 570 U.S. 744, 786 (2013) (Scalia, J., dissenting) (describing the adverse-party requirement as “not a ‘prudential’ requirement that we have invented, but an essential element of an Article III case or controversy”), with James E. Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346, 1355–56 (2015) (arguing that Article III’s embrace of both adversarial hearings and ex parte hearings derives from Roman and civil law). See James E. Pfander & Emily K. Damrau, A Non-Contentious Account of Article III’s Domestic Relations Exception, 92 Notre Dame L. Rev. 117, 118–19 (2016) (arguing that the bar to Article III jurisdiction over “domestic relations” derives from the distinction between “cases” and “controversies” and the consensual relations that underrides much of domestic relations law); James E. Pfander & Daniel Birk, Adverse Interests and Article III: A Reply, 111 Nw. U. L. Rev. 1067, 1068–71 (2017) (rejecting an argument that even if “cases and controversies” do not require “adverse parties,” they require “adverse interests”).

  257. Compare Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 272 (1985) (arguing that Congress must confer federal jurisdiction, in either original or appellate form, over all cases arising under the Constitution), with Daniel J. Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569, 1624–30 (1990) (arguing that Amar’s thesis is unproven and that Congress has more discretion about whether to provide for either lower federal court or Supreme Court appellate jurisdiction).

  258. See generally Richard H. Fallon, Jr., Implementing the Constitution (2001) (identifying implementation as a task partly distinct from interpretation).

  259. See, e.g., Baude & Sachs, supra note 225, at 1094–96 (discussing legal rules for achieving determinacy in the interpretation of contracts, deeds, and wills).

  260. See id. at 1083, 1125 (“[C]ontrary to the skeptics, extracting legal content from a written instrument needn’t involve much direct normative judgment. In fact, it usually doesn’t.”).

  261. See Mark Greenberg, What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants, 130 Harv. L. Rev. F. 105, 114–19 (2017) (explaining that the absence of consensus either about interpretive methodologies or the criteria for their validation falsifies claims for the determinacy of the law of interpretation under premises that Baude and Sachs purport to accept).

  262. See Fallon, supra note 230, at 147–48.

  263. On the obligation-altering implications of legitimate authority, see H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory 243–47 (1982); Frederick Schauer, Authority and Authorities, 94 Va. L. Rev. 1931, 1939 (2008).

  264. See Raz, supra note 28, at 284 (linking legislative intentions to law’s authority as well as its intelligibility).

  265. See Fallon, supra note 230, at 79–82.

  266. See id. at 81–82.

  267. See Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1237–51 (1987).

  268. See id. at 1252–68.

  269. See Fallon, supra note 230, at 51.

  270. See id. at 51–65.

  271. See Klarman, supra note 124, at 25–26, 146 (“[T]he original understanding of the Fourteenth Amendment plainly permitted school segregation.”); Bickel, supra note 107, at 58–59 (acknowledging “[t]he obvious conclusion” that the Fourteenth Amendment was not intended to apply to school segregation).

  272. See David A. Strauss, The Supreme Court, 2014 Term—Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 1, 57 (2015) (“The key point is one that Jefferson recognized: original understandings are binding for a time but then lose their force.”); id. at 58 (“[A] decision that would be lawless in the immediate wake of a constitutional amendment might be acceptable—in fact is, in our system, routinely accepted—after time has passed.”); Primus, supra note 25, at 170.

  273. 347 U.S. 483 (1954).

  274. Id. at 489.

  275. Id.

  276. Id. at 492–93.

  277. See Balkin, Construction, supra note 30, at 73; Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo. L.J. 1765, 1766–67 (1996).

  278. A prominent example involves Thomas Jefferson’s image of “a wall of separation between Church and State.” Letter from Thomas Jefferson to a Committee of the Danbury Baptist Association (Jan. 1, 1802), in 16 The Writings of Thomas Jefferson 281, 282 (A. Lipscomb ed., 1904). Jefferson’s metaphor has become a fixture of American First Amendment law. See, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)); see also Developments in the Law: Religion and the State, 100 Harv. L. Rev. 1606, 1635–37 (1987) (exploring history and impact of this metaphor).

  279. As I have argued elsewhere, I believe that participants in constitutional practice do best to develop their theories on a partially rolling basis as they reflect on the attractiveness of provisional interpretive principles in light of the outcomes that those principles would yield in particular cases and seek a “reflective equilibrium” between their interpretive principles and their substantive judgments about contested issues. See Fallon, supra note 230, at 142–54 (defending a second-order Reflective Equilibrium Theory of constitutional interpretation).

  280. M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

  281. See, e.g., Balkin, Living Originalism, supra note 30, at 21–35 (articulating a theory of “framework originalism” under which constitutional language provides a framework for debate and decision while leaving many outcomes underdetermined); Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 4 (2009) (describing how shifts in public opinion and expectations have shaped interpretation of the Constitution by the Supreme Court); see also David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 911 (1996) (“On the conventionalist account, the Constitution is a focal point . . . our culture has given it a salience that makes it the natural choice when cooperation is valuable.”).

  282. There are arguable exceptions. For example, although the First Amendment begins by prescribing that “Congress shall make no law,” U.S. Const. amend. I, courts interpret it as applying to the executive and judicial branches. See Strauss, supra note 271, at 30 (observing that despite its text the First Amendment “uncontroversially” applies against all three branches of the federal government); see also Curtis A. Bradley & Neil S. Siegel, Constructed Constraint and the Constitutional Text, 64 Duke L.J. 1213, 1244–47 (2015) (“American constitutional practice . . . has always viewed the First Amendment as relevant to the conduct of the entire federal government, not just Congress.”). In what many believe to be a similar deviation from original semantic meaning, the Supreme Court has held since 1954 that the Due Process Clause of the Fifth Amendment subjects the federal government to the same equal protection norms that the Fourteenth Amendment explicitly imposes on the states. See Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954); Adarand Constructors v. Pena, 515 U.S. 200, 217 (1995). The Court has adopted this interpretation even though the Fourteenth Amendment refers only to the states and virtually no one, at the time of the Fifth Amendment’s ratification, understood the Due Process Clause as barring race-based discrimination. Overall, semantic content provides a presumptive mooring in identifying constitutional meaning, but one that is sensitive to other factors of recognized legitimacy in constitutional argument. See Bradley & Siegel, supra, at 1244–47; Strauss, supra note 271, at 4 (“Clear text does not always govern, as the anomalies show; there are times when established principles are simply inconsistent with the text.”).

  283. See Foner, supra note 41, at 89.

  284. See Strauss, supra note 241, at 111–14.

  285. There is a vast literature on the mechanisms by which shifting public opinion affects appointments to and decision making by the Supreme Court. Influential contributions include Bruce A. Ackerman, We the People, Volume I: Foundations (1991); Friedman, supra note 280; Barry Friedman, Mediated Popular Constitutionalism, 101 Mich. L. Rev. 2596 (2003); and Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Calif. L. Rev. 1027 (2004).

  286. See generally Robert A. Dahl, Democracy and Its Critics 190 (1989) (“[T]he views of a majority of the justices of the Supreme Court are never out of line for very long with the views prevailing among the lawmaking majorities of the country.”); Robert G. McCloskey, The American Supreme Court 224 (1960) (“[I]t is hard to find a single historical instance when the Court has stood firm for very long against a really clear wave of public demand.”).

  287. See Fallon, supra note 13.

  288. See, e.g., John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 120.