Journal Title
Creighton Law Review
Volume
56
Issue
4
First Page
499
Document Type
Article
Publication Information
2023
Abstract
Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment's reference to "twenty dollars" means--both as a matter of original meaning and for interpreters today.
While this appears to be an easy question, I demonstrate that rather than telling modern legal actors what "twenty dollars" means, originalism instead leads to a range of highly divergent possibilities. The original meaning of "twenty dollars"--applied today--may mean anything from twenty modern dollars, to a little under four hundred dollars, to just about seven thousand dollars.
In doing so, I illustrate high-level debates between originalists and their critics, and how these debates tend to stray away from the needs of real-world actors. Originalist appeals to construction and distinguishing semantic and legal meaning are cold comfort to the hapless attorney or judge who just wants to know what "twenty dollars" means. Moreover, if originalism cannot tell modern legal actors what "twenty dollars" means, there's little hope that it will provide meaningful assistance in resolving questions over broader, loaded terms like "due process," "cruel and unusual punishment," "equal protection," and other provisions that draw the bulk of scholarly attention and constitutional litigation.
Recommended Citation
Michael L. Smith, Originalism and the Meaning of "Twenty Dollars," 56 Creighton L. Rev. 499 (2023).