The Plain-Meaning Fallacy

The leading justifications for originalism all commit the same fallacy: the plain-meaning fallacy. There are compelling reasons to enforce the Constitution’s plain—as in indisputable—original meaning. But there is little to no reason to enforce the Constitution’s less than plain original meaning. The problem is that justifications for originalism help themselves to the former set of reasons to justify doing the latter. That is the plain-meaning fallacy: assuming without argument that the benefits of enforcing plain original meaning extend to enforcing less than plain original meaning too.

     This Article lays bare the plain-meaning fallacy in originalist thought. It first develops an account of plain original meaning. It then shows how the plain-meaning fallacy infects leading justifications for originalism, insofar as they claim to justify using originalism to resolve a wide range of litigated issues. Lastly, the Article asks what a viable originalism that does not rest on the fallacy would look like. The result, “plain public-meaning originalism,” is not wholly toothless and remains true to originalism’s roots—but can rarely play the decisive role that many originalists want their method to play.