“In Sarbanes-Oxley, Congress employed a phrase: ‘discriminate because of’ that has long been recognized to require a plaintiff to show discriminatory intent. It is this transplanted phrase with its rich soil that decides this case.” ~ Eugene Scalia, former Labor Secretary
Lawrence B. Solum (University of Virginia School of Law) has posted The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning (Boston University Law Review, Vol. 101, No. 1953, 2021) on SSRN. Here is the abstract: Public Meaning Originalism is.
referring to the same things which is words of the constitution matter. of course, as i ve said repeatedly, you look at historical, the history, the tradition, federalists 39 37 tells us to look at the liquidation of the meaning by historical practice over time and you look at precedent, woven into article three, as i said in federalist 78. start with the words as justice kagan said, we re all originalists now paying some attention to or more than some, paying attention to the words of the constitution. if we stipulate for our purposes today as we re having this conversation, originalism refers to basically textualism applied in constitutional sphere with eye toward identifying original public meaning of constitutional text at issue, you are originalist? that is correct, justice kagan said, i think she meant, we are all originalists now and
is not really our role. formal and functional matter, it is important to stick to the text. there are cannons of interpretation which occasionally cause you presumption of mepsrea, against territoriality and the like that cause you to superimpose on the act, sticking to what you pass is very important. you certainly consider yourself a textulist? judging is paying attention to the text and statutory cases, paying attention of the text of the statute informed by those cannons of construction, such as presumption against extra territoriality, presumption of mensrea, that are settled cannons, although some cannons are not so settled, separate half-hour of discussions. how does textualism differ from originalism? so originalism, as i see it,
has means constitutional textualism, public meaning of the constitutional text. originalism, it is careful when you talk about originalism to understand that means are hearing different things sometimes, so justice kagan again, at her confirmation hearing said we re all originalists now, which was her comment, by that she meant the precise text of the constitution matters and by that the original public meaning, of course, informed by history and tradition and precedent that matters, as well. different conception people have of originalism, original intent, in other words, what did the people, some people subjectively intend the text to mean and that has fallen out of the analysis because for example, let s take the 14th amendment, equal