[Update: Welcome VC readers; I respond to Prof. Somin here.]
Ilya Somin's post this morning on "elitist" versus" populist" originalism--that is, whether the originalist should look at the "public meaning" (what ordinary folks would have thought the words meant) or at the "expert understanding" (what lawyers and Constitutional Convention delegates would have thought the words meant)--reminds me of the dispute between the majority and concurring opinions in Wayne County v. Hathcock.
That was the case in which the Michigan Supreme Court overruled the infamous Poletown eminent domain decision. Although Justice Weaver agreed with that result, he disagreed with the way the majority got there. The majority had concluded that the "public use" limitation on eminent domain should be understood in the way that "an individual versed in the law before the Constitution's ratification would [have] underst[ood]d that concept" at the time. Justice Weaver, on the other hand, thought that the terms should be understood as the populace would have understood it: "The majority's focus on the understanding of those 'sophisticated in the law' is elitist," she wrote. "It perverts the primary rule of constitutional interpretation — that constitutions must be interpreted as the people, learned and unlearned, would commonly understand them. It invites the erosion of constitutional protections intended by the Michigan voters who ratified the 1963 Constitution. The majority's approach ignores the words of Michigan's respected jurist, Justice Thomas M. Cooley, who warned against the tendency to force from the Constitution, by 'interested subtlety and ingenious refinement,' meaning that was never intended by the people who adopted it."
The majority responded in a footnote that it was "hard pressed to understand what differentiates Justice Weaver's construction from our own," because both she and they agreed that the term "public use" was "a technical term," that "must be read in light of its 'legal and constitutional history'.... If there is any meaningful difference between reading a constitutional term according to its legal history because the ratifiers understood that the term was one with a technical meaning (our position) or because the ratifiers themselves were familiar with that legal history (Justice Weaver's position) it is one we find difficult to discern."
But Justice Weaver thought that the "sophisticated in the law" approach was "subject to abuse" because it "invites the erosion of the limitations placed on the exercise of eminent domain," and "invites 'sophisticated' refinement of the people's 'right to govern' themselves through their popular vote. It allows the 'sophisticated and learned in the law' to, intentionally or not, strip constitutional provisions of their context and manipulate and distort their meaning."
To someone who, like me, is not comfortable calling himself an "originalist," this seems like counting angels on the head of a pin. If anything, while Justice Weaver's position sounds persuasive, she seems unable to show any real substantive importance to drawing this elitist/populist distinction. The judges are experts, that's true--but that's just why the people choose them to run the courts. If the people are dissatisfied with the results, they'll have to find some plausible substitute, and there are plentiful ways of doing this: constitutional amendment, choosing different judges, limiting jurisdiction, and so forth.
One plausible distinction is this: the Michigan Constitution was ratified in 1963, almost a decade after the Supreme Court had essentially destroyed the public use limitation in the federal Constitution in Berman v. Parker. It's certainly plausible that when the authors of the Michigan Constitution used the same term in the state Constitution, they expected it to be interpreted as broadly as the Berman Court had interpreted the "public use" clause in the federal Constitution. One might say that this is an "elitist" position because the general public hadn't heard of Berman, and didn't know that that's how lawyers would read it.
But surely the populace is on notice that terms in the Constitution are very important, are pored over by lawyers and judges, and are interpreted in light of other precedents. They are therefore ultimately responsible for choosing words that avoid results they don't like, such as incorporating the Berman interpretation of "public use" into their state Constitution. If they fail to take such precautions, then the law presumes that they've done what they've done intentionally. If they later decide that was a mistake, then either (a) the precedent on "public use" was wrongly decided, and should be overruled for that reason, or (b) the people can use the tools at their disposal to alter the constitutional wording. But I see no way that this problem breaks down along epistemological grounds, or that it can be understood along the axis of elites versus populism. This problem is better understood as an ordinary problem of constitutional interpretation--does "public use" include economic development or not?--than as some deeper problem of interpretation, or at least, a problem of interpretation that turns on the question of elites versus the populace.
And trying to analyze it in terms of the latter, and to take a position on the side of such a vaguely defined concept as "populism," seems to invite the eradication of all law, essentially. What I mean by that is, law consists almost entirely of a very refined and specialized use of language. That refinement and specialization is within the grasp of the ordinary person, but most ordinary people don't bother trying it: they (rationally) leave that task to legal experts. If the experts do something wrong, then the people can use their retained power to fix the problem. But to say that there is some fundamental problem with the lawyer's technical use of language does not help. What, after all, are we to replace it with? Daily polls of what people think the terms mean? Then who will take the polls? And who will interpret these polls? And then aren't the interpreters doing just what judges already do: figuring out what people think the words mean?
A judge who tries to implement some distinctively "populist" understanding of the law will soon find herself in the "elite" category. This is because there is no qualitative difference between the "technical" use of a word and the ordinary use of the word; one shades into the other, and members of the populace have varying degrees of understanding of these meanings. Once she finally decides that a term's "popular" meaning is X, then that interpretation will affect how ordinary people use the term the next time around. They may avoid using the term entirely because they don't want to be understood as saying X. Or they may purposely employ the term in a different way in order to rebel against meaning X, which they dislike (the way many libertarians insist on calling themselves "liberals"). Or they may keep using the term, thinking it meant X all along. Then when the next case comes along involving that term, or something similar to it, the judge will rely upon her previous precedent holding that it means X...and gradually the term's meaning becomes more refined and more "technical." That's just how "terms of art" are born. And a decade later, someone new accuses the judge of using "elite" language.
Prof. Somin wrotes that "[e]litist originalism leads to...research focused on the views of legal and political elites. By contrast, populist originalism requires us to do more research on the constitutional beliefs of ordinary people." But that is not so strong a distinction as he seems to think. The legal and political elites are presumably employing what they believe is the proper use of the language, and so do the ordinary people. One side or the other may be wrong, but they are speaking the same language, so the question is not which side we should listen to, but which side is right. This is particularly true when (as in the case of the 1787 Constitution) the elites view themselves as the deputies of the people, chosen to act as experts on behalf of the people, and who themselves point to the people as the source of constitutional authority. The legal and political elites' understanding of the terms is important because they are experts, chosen for the task of drawing up the text. The public's understanding is important because they breathe life into the Constitution. But these are not two different languages that can be researched separately. And there cannot be a robust distinction between "elite" and "populist" originalism for just that reason.
In short, it's true that the elites might decide that a term like "public use" means one thing, while the average person thinks that's wrong. That happens very frequently, in fact. But that does not mean that there is some distinction that can be incorporated into the discipline of the law itself.