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12. Solum's “Intellectual History as Constitutional Theory” erroneously argues that the historical critiques of originalism aimed to supplant constitutional theory by intellectual history. In fact, the intellectual history critique of originalism takes a view that is almost the exact opposite of the one that Solum attributes to its adherents. Most historians have argued that the goal of recovering the historical/legal meaning of the Constitution is distinct from its application to contemporary constitutional problems; see Cornell, “Originalism as Thin Description.”

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28. Cornell, “Originalism as Thin Description”; and Gienapp, “Historicism and Holism.”

29. Developing a genuinely Gricean approach to history would necessarily focus on speakers’ meaning, not on sentence meaning. For an effort to explore such a possibility, see Martinich, “A Moderate Logic of the History of Ideas.”

30. A number of traditional intentional originalists have argued that Solum's theory is parasitic on earlier theories; that is, his theory turns out to be a form of intentionalism; see Alexander, Larry, “Originalism, the Why and the What,” Fordham Law Review 82 (2013): 539–44Google Scholar; Kay, Richard S., “Original Intention and Public Meaning in Constitutional Interpretation,” Northwestern University Law Review 103 (2009): 703–26Google Scholar; and Fish, Stanley, “The Intentionalist Thesis Once More,” in Challenge of Originalism: Theories of Constitutional Interpretation, ed. Huscroft, Grant and Miller, Bradley (Cambridge: Cambridge University Press, 2011), 99–119CrossRefGoogle Scholar.

31. Soames, “Deferentialism.” Soames approaches eighteenth-century constitutional meaning as if participants in constitutional debate adhered to Gricean maxims of communication, a dubious assumption that is hard to reconcile with the historical realities of post-Revolutionary Era constitutional debate. For a more general critique of Grice challenging the universality of his maxims, see Duranti, Alessandro, “Language as Culture in U.S. Anthropology: Three Paradigms,” Current Anthropology 44 (2003): 323–47CrossRefGoogle Scholar.

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33. For other examples of originalist theories that erroneously apply a simple model of communication to constitutional debate in the Founding Era, see Alexander, Larry and Prakash, Saikrishna, “‘Is That English You're Speaking?’ Why Intention Free Interpretation is an Impossibility,” San Diego Law Review 41 (2004): 967–95Google Scholar; and Wurman, Ilan, A Debt against the Living: An Introduction to Originalism (Cambridge: Cambridge University Press, 2018)Google Scholar.

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36. Duranti, Alessandro, Linguistic Anthropology (Cambridge: Cambridge University Press, 1997), 82CrossRefGoogle Scholar. Of course one need not embrace the radical indeterminacy of language associated with Jacques Derrida's deconstructive theory of the infinite play of signs to reject Solum and other originalists’ simplistic view of objective meaning and transparent communication. On Derrida's theory; see Leonard Lawlor, “Jacques Derrida,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Summer 2018), https://plato.stanford.edu/archives/sum2018/entries/derrida/ (accessed July 1, 2019).

37. Morgan, Speech Communities. Kammen, Michael, “The Problem of American Exceptionalism: A Reconsideration,” American Quarterly 45 (1993): 1–43CrossRefGoogle Scholar; see also Higham, John, “Changing Paradigms: The Collapse of Consensus History,” Journal of American History 76 (1989): 460–66CrossRefGoogle Scholar.

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39. For critical discussions of the concept of the reasonable man in law see, Moran, Mayo, “The Reasonable Person: A Conceptual Biography in Comparative Perspective,” Lewis & Clark Law Review 14 (2010): 1233–83Google Scholar. For thoughtful discussion of Madison and the Founding Era's evolving views of constitutionalism, see Bilder, Mary Sarah, Madison's Hand: Revising the Constitutional Convention (Cambridge, MA: Harvard University Press, 2017)Google Scholar; and Gienapp, The Second Creation.

40. On the problems of using hypothetical authors to reconstruct textual meaning, see Carroll, Noel, “Interpretation and Intention: The Debate between Hypothetical and Actual Intentionalism,” Metaphilosophy 31 (2000): 75–95CrossRefGoogle Scholar. Madison's view that it was the meaning imputed by the ratification conventions and not framer's meaning that was determinative of Constitutional meaning (at least in 1791), is perhaps the clearest example of how one influential theory of constitutional interpretation in the Founding Era broke with the ordinary rules of conversation in which a speaker's intentions determine meaning. It is worth noting that Madison's novel theory of constitutional meaning also rejected the traditional intentionalist views of statutory construction that dominated English legal theory prior to 1776. Nor was Madison's theory the only alternative model of textual meaning floated at the time, another fact that makes the claim of modern scholars, lawyers, or judges arguing in favor of a single original meaning or method deeply problematic.

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44. McGinnis, John O. and Rappaport, Michael B., “The Abstract Meaning Fallacy,” University of Illinois Law Review 2012 (2012): 752, 761Google Scholar.

45. Ibid., 747.

46. On the profound tensions within American legal culture in the Founding Era, particularly with regard to how to read texts, see Cornell, Saul, “The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate over Originalism,” Yale Journal of Law & the Humanities 23 (2011): 295–337Google Scholar. The theoretical distinctions among languages, discourses, and speech communities discussed in this article draw on models developed by sociolinguistics, linguistic anthropology, and the ethnography of speaking. For a useful introduction to this scholarly literature, see the references gathered in note 35.

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50. See note 42 above and note 52 below.

51. Kaminski, John P., Saladino, Gaspare J., Leffler, Richard, Schoenleber, Charles H., and Hogan, Margaret A., eds., The Documentary History of the Ratification of the Constitution, Volume VI: Massachusetts, No. 3 (Madison: Wisconsin Historical Society Press, 2000)Google Scholar (hereafter DHRC), 1345–46. For the erroneous view that the common people were essentially mute bystanders during ratification, see Prakash, Saikrishna and Yoo, John, “Against Interpretive Supremacy,” review of Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004)Google Scholar, in Michigan Law Review 103 (2005): 1539–66Google Scholar. For correctives to this condescending view, see Holton, Woody, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007)Google Scholar; Cotlar, Seth, “The View from Mount Vernon Versus the People Out of Doors: Context and Conflict in the Ratification Debates,” William and Mary Quarterly 69 (2012): 369CrossRefGoogle Scholar; and Estes, Todd, “Power and Point of View in the Ratification Contest,” William and Mary Quarterly 69 (2012): 398, 400Google Scholar. For a discussion of the role of popular constitutionalism in early American constitutional development and numerous examples of ordinary Americans making their voices heard in the Founding Era, see Leonard, Gerald and Cornell, Saul, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders Constitution 1790s–1830s (Cambridge: Cambridge University Press, 2019)CrossRefGoogle Scholar.

52. On traditions of intensive Bible reading and anti-Federalism's constitutional hermeneutics, see Cornell, Saul, “Constitutional Meaning and Semantic Instability: Federalists and Anti-Federalists on the Nature of Constitutional Language,” American Journal of Legal History 56 (2016): 21–28CrossRefGoogle Scholar.

53. For additional examples of popular anti-Federalism anti-lawyer rhetoric, see Cornell, “The People's Constitution vs. the Lawyer's Constitution.”

54. Cornell, Saul, The Other Founders Anti-Federalists and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: The University of North Carolina Press, 1999)Google Scholar.

55. Illiteracy in this context meant the absence of a Latin education and not an inability to read or write. For a discussion of Singletary's speech in this context, see Warner, Michael, The Letters of the Republic: Publication and the Public Sphere in Eighteenth-Century America (Cambridge, MA: Harvard University Press, 1992)Google Scholar. Massachusetts enjoyed one of the highest rates of literacy (in the modern sense of being able to read and write) and the biblical references in Singletary's speech further illustrate the profound influence of Protestant traditions of intensive Bible study on reading cultures in early America; see Gross and Kelly, eds., A History of the Book in America.

56. McGinnis and Rappaport, “The Abstract Meaning Fallacy,” 758 note 79. Thus, they argue that “lawyer's view was over time becoming less intentionalist and more textualist, and therefore closer to the ordinary language approach.” In fact, a variety of eminent judges continued to embrace intentionalist modes of analysis and often looked beyond the text to the spirit of the law in the Antebellum Era; see, Peterson, Farah, “Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory Interpretation” Maryland Law Review 77 (2018): 734–35Google Scholar.

57. McGinnis and Rappaport, “The Abstract Meaning Fallacy,” 747, at note 36.

58. McGinnis, John O. and Rappaport, Michael B., “Unifying Original Intent and Original Public Meaning,” Northwestern Law Review 113 (2018): 1394Google Scholar.

59. In this sense, McGinnis and Rappaport have fallen victim to a corollary of the quantification fallacy described by historian David Hackett Fischer, who offers a useful caution that “many ideational and emotional problems, which lie at the heart of historical problems, cannot be understood in quantitative terms,” Historians Fallacies: Toward A Logic of Historical Thought (New York: Harper and Row, 1970), 90Google Scholar.

60. Gienapp, Jonathan, “Making Constitutional Meaning: The Removal Debate and the Birth of Constitutional Essentialism,” Journal of the Early Republic 35 (2015): 375–418CrossRefGoogle Scholar, and more generally, Gienapp, The Second Creation.

61. On neutral principles, see Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959): 1, 33CrossRefGoogle Scholar; Friedman, Barry, “Neutral Principles: A Retrospective,” Vanderbilt Law Review 50 (1997): 503–36Google Scholar. On the idea of a rule of recognition, see Hart, H.L.A., The Concept of Law, 2nd ed. (New York: Oxford University Press, 1994)Google Scholar. For contrasting views of the Constitution as a rule of recognition, see Adler, Mathew D. and Himma, Kenneth Einar, eds., The Rule of Recognition and the U. S. Constitution (New York: Oxford University Press, 2009)CrossRefGoogle Scholar.

62. Siegel, “Dead or Alive”; Flaherty, “Can the Quill be Mighter than the Uzi?”

63. For a summary of some of this research, see Kozuskanich, Nathan, “Originalism in a Digital Age: An Inquiry into the Right to Bear Arms” Journal of the Early Republic 29 (2009): 585–606CrossRefGoogle Scholar; and Baron, Dennis, “Corpus Evidence Illuminates the Meaning of Bear Arms” Hastings Constitutional Law Quarterly 46 (2019): 509–22Google Scholar. A number of originalists have touted the potential of corpus linguistics to provide more objective evidence of original meaning. For a thoughtful assessment of the potential and pitfalls of this approach; see Solan, Lawrence M., “Can Corpus Linguistics Help Make Originalism Scientific?” Yale Law Journal Forum 126 (2016): 57–64Google Scholar.

64. Solum's theory conflates the existence of a common linguistic community with the existence of a common speech community. This allows him to treat dictionaries and evidence from corpus linguistics as proxies for meaning, but this approach ignores the way that individuals from different speech communities can read the same texts with different assumptions and interpretive conventions, producing different constitutional meanings. Counting word usage offers some useful information, but without a model of how texts were actually read, it falls far short illuminating constitutional meaning.

65. On the communication circuit and the methods of the history of the book, see Robert Darnton, “What is the History of Books? Revisited.” For a general overview of this important subfield of intellectual history, see Finkelstein, David and McCleery, Alistair, An Introduction to the History of the Book, 2nd ed. (London: Routledge, 2013)Google Scholar.

66. Cornell, The Other Founders. For another example of how this approach can illuminate Founding Era belief and practices, see Cornell, Saul, “‘To Assemble Together for Their Common Good’: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech,” Fordham Law Review 84 (2015): 915–34Google Scholar.

67. In Heller Justice Scalia cites a book review by Randy Barnett for proof that the Dissent's usage was not anomalous, Heller, at 587. Barnett dismissed the argument of historian William Merkel that the Pennsylvania anti-Federalists’ Dissent of the Minority was in fact a statement of a minority position. Actually, Barnett totally misrepresented Merkel's position as “characterizing the Pennsylvania minority report as reflecting the views of wild anarchic deviants”; Barnett, Randy, “Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?” review of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent, by Uviller, H. Richard and Merkel, William G., Texas Law Review 83 (2004): 248Google Scholar. Merkel's claims were actually uncontroversial among anyone with a rudimentary knowledge of the history of Pennsylvania politics. Anti-Federalists were primarily drawn from the states’ proto-party, the Constitutionalists, who defended the 1776 Constitution against the Republicans, a group that provided the core of Federalist support in the state. The historiography on this topic extends back more than a half a century; see, for example, Cornell, The Other Founders; Arnold, Douglas, A Republican Revolution: Ideology and Politics in Pennsylvania, 1776–1790 (New York: Garland Publishing, 1989)Google Scholar; and Brunhouse, Robert L., The Counter-Revolution in Pennsylvania, 1776–1790 (Harrisburg, PA: Pennsylvania Historical and Museum Commission, 1942)Google Scholar. Curiously, Barnett's argument overlooks basic elements of Founding Era political history, which allows him to dismiss Merkel's affirmation of an undisputed fact about early American politics. This error was compounded when Justice Scalia elevated this mistake to the level of constitutional doctrine. For a more detailed discussion of the Dissent's inflated role in modern debates over the Second Amendment, see Cornell, Saul “Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard,” Constitutional Commentary 29 (2014): 389–403Google Scholar.

68. Cornell, “Conflict, Consensus and Constitutional Meaning.”

69. Ibid.

70. The headnote to the Dissent in the DHRC offers numerous examples of contemporary Federalist and anti-Federalist reactions, see DHRC 15:7–13.

71. Ibid.

72. On Whittington's distinctive approach to originalism, see note 6. For examples of Whittington's empirical work, see Frost, Daniel and Whittington, Keith E., “A Man For All Seasons: Historical Memory and John Marshall,” Polity 49 (2017): 575–602CrossRefGoogle Scholar; and Whittington, Keith E. and Rinderle, Amanda, “Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon,” Hastings Constitutional Law Quarterly 39 (2012): 823–60Google Scholar.

73. Charles, “The ‘Originalism is Not History’ Disclaimer: A Historian's Rebuttal.”