A legal scholar (?) has made a claim that reminds me of the famous “proof” that 1 = 2 (“proof” here; fallacy explained here). The “proof” is invalid because it relies on the multiplication of both sides of an equation by zero. But anything multiplied by zero equals zero. It is therefore possible to “prove”, for example, that 1 = 1,000,000.
I come now to Perry Dane, who seems to have “proved” that the interpretation of laws by consulting their original public meaning is “incoherent”. This is from the abstract of his paper on the subject:
The method of original public meaning has a distinct, deadly, bit of intractable incoherence: It is, uniquely, largely useless in interpreting the meaning of contemporaneous legal enactments. If we, today, are trying to figure out the meaning, not of a provision enacted years ago, but of a text enacted today or recently, then looking to original public meaning will usually be a circular, empty, effort. After all, we – the interpreters of a contemporaneous text – are the original public.
Do you see what he’s done? He has noted, correctly, that a person today who interprets a contemporary text adds no meaning to that text because its meaning is obvious, having (presumably) been written with today’s meanings in mind. He then assumes, insidiously, that the value added by interpreting the meaning of texts is always zero, regardless of the age of the texts.
How ridiculous is that? What do you think of when you read “sidearms”? Because you are a contemporary of mine, you probably think of pistols or revolvers, generally, and pistols or revolvers that can be carried in holsters (usually at the waist), specifically. Do you think of military weapons of any kind that are worn at the side, especially the swords of officers? Well, you would if you were interpreting the meaning of “sidearm” in a text from the late 1700s.
A word that is no longer in use or which has changed meaning will not be understood properly until research reveals the meaning of the word in today’s language.
To put it mathematically:
The interpretive multiplier on a contemporary text is one (not zero): uninterpreted text (1) x interpretation (1) = meaning (1).
The interpretive multiplier on a text from long ago is greater than one (in the hands of a good interpreter): uninterpreted text (<1) x interpretation (>1) = meaning (1).