A few days ago, I was asked to speak to the Vaca Valley Tea Party about my book, The Conscience of The Constitution. They recorded it, and you can watch the presentation here:
A few days ago, I was asked to speak to the Vaca Valley Tea Party about my book, The Conscience of The Constitution. They recorded it, and you can watch the presentation here:
I joined Armstrong & Getty this morning at 7 to talk about the Pacific Legal Foundation's victory in the San Francisco property rights case. But then I stuck around for the rest of the show. You can listen to the podcasts here:
In case you missed it, I talked with John Stossel on his Fox Business Network show on Thursday about "Does anyone care about the Constitution anymore?"
I don't know why it's weirdly formatted, and I can't figure out how to fix it. Sorry.
This has happened to me before, in some rather amusing ways. In one case, Pacific Legal Foundation moved for attorney fees after winning a case, and the other side’s lawyer filed a brief arguing that we shouldn’t get fees because PLF is primarily supported by donations (since it doesn’t charge clients). I don’t get the logic there, but to support that claim, the lawyer cited a comment I had made on a Volokh Conspiracy post, in which I’d said that only about 1 or 2 percent of PLF’s annual budget comes from attorney fees. Like I said, I don’t get the logic.
In another case, the government’s lawyer moved to dismiss our lawsuit challenging an occupational licensing law, and mentioned in her brief that we’d filed similar lawsuits in other states—a fact she can have learned only through our blog posts. I guess she thought that proved that the case was frivolous or something…anyway, that allowed me to explain in my reply brief that, yes, we had—and all those courts had denied motions to dismiss.
But by far the best was Surrey v. True Beginnings in 2008, in which a self-proclaimed “men’s rights activist” sued a dating site for “discrimination” on the grounds that it charged women less than men. I wrote an amicus brief arguing that nobody’s harmed by this—in fact, both men and women benefit from it—and that the lawyer bringing the case was well known for predatory lawsuit abuse. In fact, he’d recently been sanctioned by a federal court for his bounty-hunter litigation. Well, he didn’t like that, and filed a hilariously angry brief responding to mine, which included such gems as
PLF attorney Timothy Sandefur is a self-proclaimed business-first advocate. For example, Mr. Sandefur refers to his car as “The Lochner-mobile,” which bears the personalized license plate “198US45”—the citation for the much-maligned U.S. Supreme Court case Lochner v. New York, 198 U.S. 45 (1905). Lochner held the “right to free contract” was implicit in the due process clause of the Fourteenth Amendment. In the Lochner era, the Supreme Court invalidated scores of federal and state statutes that sought to regulate working conditions during the Progressive Era and Great Depression…
...and cited three Freespace posts, including pictures of my car.
Of course, while I am not a “self-proclaimed business-first advocate”—others may have proclaimed me as such—I do indeed have the license plate 198US45 and my car is indeed the Lochnermobile.
Hope to see some Freespace readers at some of these. If your club or campus would like to organize an event to talk about The Conscience of The Constitution or about economic liberty, private property rights, and current controversies in constitutional law, just drop me a line.
October 14: Pepperdine Law School Federalist Society
October 16: Avid Reader Bookstore, Davis, CA
October 30: Boise State Students for Liberty
November 21: Praxis economics club, Hillsdale College
The new issue of Regulation includes my article about the big antitrust immunity case, which will be heard by the Supreme Court next week, N.C. Bd. of Dental Examiners v. FTC. I explain why the Court ought to take a stern line about allowing state governments to establish coercive monopolies--and stop exempting from prosecution the only entity that can actually create monopolies: the government.
In PLF's latest petition to the Supreme Court, we argue that the First Amendment doesn't allow states to define a person as practicing a business solely on the basis of the person's speech. Read more at PLF Liberty Blog.
Prof. John Yoo endorses the Obama Administration's argument that it already has authority to make war on ISIS. As Prof. Ilya Somin notes, there are a number of flaws with that argument. One thing I'll add: the AUMF does not authorize the President "to take action to deter and prevent acts of international terrorism against the United States." It just says that the Constitution gives the President that authority. But it does not specify what exactly such authority encompasses. This is a significant difference. If I say that a baker already is capable of making desserts, that does not mean that he has the ability to make a particular pie in a particular way. And if the Constitution does not give the President that authority, then the AUMF certainly can't give it to him. So the AUMF only reiterates (or purports to reiterate) what power the President already enjoys.
Yoo does not claim otherwise: he invokes the AUMF, not as legally binding, but as proof that Congress, at one time, agreed with his broad interpretation of Constitutional power. Still, I think it's too much to say that the phrase "take action to deter and prevent acts of international terrorism against the United States" includes a constitutional "power...to attack countries and terrorist groups to prevent them from harming the U.S., even if not with an imminent attack." Everyone believes that the President has the power to "take action to deter and prevent acts of international terrorism" at some point. Nobody thinks that he can only act after a bomb explodes. But whether this indefinite "action to deter" also includes the "power...to attack countries" that are not threatening the United States with imminent attack...well, that's a highly dubious proposition.
Does the Constitution give the President power "to attack countries" that are "not [threatening the U.S.] with an imminent attack"? That seems like a very extreme proposition, and requires extreme proof. The Constitution's authors were well versed in the history of the Stuart Monarchy, among whose crimes was waging war without Parliamentary approval. That crime was one of the leading reasons for the English Civil War and the later Glorious Revolution, two events that laid the intellectual framework for the American Revolution. The idea that the American founders meant to restore the British Monarchy in the form of the American President is simply laughable. And the idea that the AUMF's reference to "action to deter and prevent attacks" includes absolutely limitless Presidential authority is plainly contrary to every principle of American constitutionalism.
Such a notion was expressly rejected by, among others, James Wilson. Wilson (signer of both the Declaration and the Constitution, and second only to James Madison as the Convention's most important delegate) distinguished the American presidency from the British monarchy on just this point: "As the law is now received in England, the king has the sole prerogative of making war. On this very interesting power, the constitution of the United States renews the principles of government, knnown in England before the conquest [of 1066]." In other words, the Constitution denies the President the "sole prerogative of making war."
At the time Wilson was writing, it was generally believed that the more expansive understanding of British monarchical power had begun only after the Norman Conquest. This theory, today called Whig History, is largely rejected today, but Wilson believed it. He believed that "the chief difference between the Anglo-Saxon and the Anglo-Norman government" was that in the former, the power to make war had been considered legislative, while "in the latter, it was transferred to the soveriegn." Thus there was "a pleasure in reflecting on" the fact that the American Constitution was a "renovation of the ancient constitution of England.... [O]ur national government is recommended by the antiquity, as well as by the excellence, of some of its leading principles." 2 Collected Works of James Wilson 871 (K. Hall & M. Hall, eds. 2007)
Also, the distinction between "making" and "declaring" war, on which Yoo rests much of his argument, is also unpersuasive. Note this exchange at the Constitutional Convention:
Mr. Madison and Mr. Gerry moved to insert "declare," striking out "make" war; leaving the Executive the power to repel sudden attacks.
Mr. Sharman though it stood very well. The Executive shd be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much.
Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.
Mr. Elsworth. there is a mterial difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration, peace attended with intricate & secret negociations.
Mr. Mason was agst. giving the power of war to the Executive because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."
On the motion to insert declare--in place of make, it was agreed to.
Note that while the delegates did replace "make" with "declare," they did so for the opposite reason that Yoo claims: Madison and Gerry's motion was designed to allow the President to repel sudden attacks, and while every delegate who spoke on the question insisted that the President should not be able to start a war on his own, nobody spoke to the contrary in support of a unilateral presidential authority to commence war. There is thus no evidence that the distinction between "making" and "declaring" war was intended (by the Philadelphia delegates) for the purposes assumed by Yoo's argument.
This does not prove that the AUMF doesn't authorize attacking ISIS. In fact, as I've argued, if the President can demonstrate that ISIS is an organization that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11," or that "harbored" those who did, or that it is composed of "persons" who did any of these things, then the AUMF does indeed authorize war on ISIS.
Reason’s Matt Welch thinks that military action against ISIS is “illegal” and that the Administration’s argument that it is authorized by the 2001 Authorization of Use of Military Force is “B.S.” His reasoning is that the AUMF only authorized action against al Qaeda, and ISIS isn’t al Qaeda, but is actually al Qaeda’s enemy.
This is not correct. The AUMF is not limited to action against al Qaeda; in fact, it does not mention al Qaeda at all. Instead, it authorizes the President to use force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” A few notable points:
1. This is a declaration of war for constitutional purposes. One often hears people claim that Congress has not declared war, or that the Iraq War was “undeclared,” and so forth. But that is not true. The Constitution does not require a declaration of war to use any particular formula of words, and by authorizing the use of military force, the AUMF is a declaration of war as far as the Constitution is concerned.
2. The AUMF is not limited to al Qaeda, but is directed at any “nations, organizations, or persons” who, in the President’s judgment, “planned, authorized, committed, or aided” in the September 11 attacks, or to any person, group, or nation that “harbored” those responsible.
3. This is not an open-ended list. The President is obviously required somehow to “determine” that the “nations, organizations, or persons” in question were in some way, responsible for “planning, authorizing, committing, or aiding” the September 11th attacks. It’s not an open door for war against any terrorist organization. This means that the Obama Administration must show that ISIS or its members “planned, authorized, committed, or aided” in the September 11 attacks, or “harbored” those responsible. If he is unable to do so, then he has no authority under the AUMF to attack ISIS.
I don’t know much about ISIS—I suspect that it is not an “organization” or group of “persons” who “planned, authorized, committed, or aided” in the September 11 attacks or harbored those who did, but it is certainly possible that ISIS contains some of the “persons” responsible. If not, then the AUMF does not authorize attacking ISIS. But the President is in the best position to make that call. (And, of course, even if the AUMF does not authorize this action, that doesn’t mean he can’t attack ISIS; he would still have authority under the Constitution itself to act without congressional approval when necessary in an emergency to prevent harm to the U.S. Of course, he would have to have some reason to believe that there is such an emergency, which seems doubtful to me—but, again, I’m not privy to the President’s daily national security briefing.)
Still, where it cannot be shown that the organization or nation in question was responsible in any way for September 11, the AUMF does not apply. That is why President Bush did not construe the AUMF as authorizing the Iraq War, but instead went to Congress and got a new authorization, specifically allowing action in Iraq.
4. The AUMF contains no specific expiration date. That’s obviously appropriate, since when one enters a war, one shouldn’t draw any arbitrary end-date, but should fight it out till one wins. On the other hand, that indefiniteness is dangerous, since it opens the prospect of an endless series of wars. The problem with the AUMF when it was first written, and with the whole “war on terrorism” throughout its dull existence, is its vagueness—a vagueness borne out of cowardice. Congress was afraid to use the word “war,” just as political leaders of both parties are afraid to acknowledge the true nature (or headquarters) of a war against Islamic fascism. That fear led to the adoption of a vaguely worded resolution that, as the Congressional Research Service recently said, “is unprecedented in American history, with the scope of its reach yet to be determined.” The only solution to that problem is for Congress to take action now, either to specifically approve action against ISIS, or to expressly disapprove it.
The point is, war against ISIS is not clearly illegal, and basing it on the AUMF is not “B.S.” That’s just the problem with vague laws of any sort: nobody knows what they allow or prohibit.
Honestly, the best part is how well the guy pronounces Kalani'opu'u.
I'm delighted to report that I've just received word from Cato that the audio book version of The Conscience of The Constitution, as well as a paperback edition, will be coming soon. I will, of course, post word details when they become available.
I'll be joining Armstrong & Getty in studio today at 7 am to talk about PLF's lawsuit against San Francisco's ransom demand for property owners, and Nebraska's effort to force "for sale by owner" advertisers to get real estate broker licenses.
Update: If you missed it, you can listen to the podcast here.
I posted this in a response to a comment on Facebook, but it's probably worth repeating here.
I've never been arrested, or even ticketed. My interactions with the police have never been negative in any way. But I've been wrongly accused of things a couple times, and in school I was sometimes punished wrongly, or excessively. I was once punched in the face by another kid in junior high (he mistakenly thought I'd stolen something from him). The principal insisted on punishing us both, though I'd done nothing wrong.... Things like that.
On another occasion, I experienced a severe invasion of my privacy at the hands of college officials.
These things don't still sting. They still burn. I still feel, not just sad, nostalgic frustration, but a bitter, furious, acid outrage, when I think about them. I feel quivering anger from my head to my toes about them. I feel it difficult to even discuss some of them with loved ones.
I can only imagine how vastly more outraged I would be if I were wrongly arrested, if my home were unjustifiably searched, or if the government did to me what the college did to me. It would likely infuriate me so intensely that I would hate for the rest of my life the people and institutions responsible for making them happen, and it would be a very long time and take a hell of a lot of work to persuade me to forgive them or to believe that such things would not happen again. And it would likely be impossible to persuade me that I need not fear and distrust anyone in a position to do something similar to me. In short, it would almost certainly make me view society as them versus me in the same way that I still, decades later, think about the school authorities and peers who treated me as I've mentioned.
Irrational? Perhaps. I don't think so, but does it matter? And if that is how I'd react to a single wrongful arrest, I cannot possibly imagine the rage and indignation that I would feel if I were regularly accosted by the police, questioned, detained, searched, arrested, or even just heckled. Or even just ignored when I needed help. I would feel not like a citizen but like a subject. Not like a fellow American, but like a detained, suspected, alien.
Jefferson said that he thought this the strongest government on earth, "the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern." If many black and Hispanic Americans, and the residents of our inner cities, do not feel this way--especially after four decades of an unconstitutional, unwinnable, immoral war on drugs--well, I find it hard to blame them.
Prof. Somin misses my point when he says that the Constitution is for ordinary people and is meant to be understood by ordinary people. I agree with that completely, of course. But how do they understand it? By engaging in what Daniel Webster called “refining, defining, and splitting hairs”—that is, by engaging in the practice of law. So my point isn’t that the elite reading of a document should govern. It’s that the ordinary language should, and always does govern, because all the “elites” are doing is the same thing that “ordinary” people are doing, if the latter just thought about it.
Consider: Prof. Somin writes that “Legal experts today know more...than ordinary people today about how the ordinary people of 1788 or 1868 understood the meaning of parts of the Constitution enacted at that time.”
So, then, which should govern our constitutional interpretation of, say, “privileges or immunities of citizens of the United States”? Today’s ordinary people have, I think it’s safe to say, hardly a clue what these terms mean. They do not know that “privileges and immunities” is a legal term of art that appeared in the Articles of Confederation, and has roots as far back as Magna Carta. They would probably think of “privileges” and “immunities” as two different things; and indeed, “privileges” in ordinary parlance today means discretionary benefits, not rights, which is what the term means in its specialized, “elite” usage. So which should govern?
Prof. Tom W. Bell has argued that the meaning ascribed by today's ordinary person should govern, not either the specialized legal understanding or the general understanding in 1868. We’ll put that aside for now. Prof. Somin argues that the contemporary popular understanding should not govern. Instead, he argues that the meaning ascribed by today’s elites to ordinary people in the past should govern. But this is not “populism”; it’s elitism! Popular folks today don’t know or care what ordinary people back then thought these words meant, and they can only find out by engaging in “elite” methods. As Prof. Somin acknowledges, it’s today’s legal experts who know (or claim to know) what the 1868 ordinary folk meant by that term. But today’s legal experts are the elite. So by employing that interpretation, a judge would be applying an elitist understanding, not a “popular” understanding. Yet at the same time, he can rightly claim that he’s actually employing a popular understanding, because it has its roots in what ordinary people thought, and because ordinary people today, trying to interpret a document from the past, will look at what the people in the past thought.
The point is, any specialized interpretive model that lawyers adopt and stick to, as long as they stick to it, becomes by virtue of that very fact, an “elite” understanding, because it is a methodology that they, the elite, employ as a technical device to interpret the language. But that is what any language-user does. Which means that it is also an “ordinary” understanding. Is a person who uses a dictionary following ordinary usage? Or is he, by relying on a dictionary prepared by language experts, in order to use a specific, precise term, employing an “elite” understanding?
Consider: if an ordinary person wanted to know what the “Privileges or Immunities” Clause meant, what would he do? He would get down the history and law books and look up how people in 1868 understood “privileges or immunities,” wouldn’t he? But he would then be doing the same thing that the “elite” lawyers do. On the other hand, if he just used the terms without such a reference, he would not be employing some special “popular” understanding of the language; he’d be employing no particular understanding at all, and he would likely admit as much to a neighbor who challenged him that he was trying to interpret the phrase without making the proper inquiries. On the other hand, if he went out and looked the phrase up in dictionaries, or took polls to find out what people thought the words mean...he would again find himself in the elite, since people don’t typically do this when speaking.
Law, like poetry, is “heightened speech.” It is the use of words in a special, careful, techincal sense. Everyone does this, including ordinary people. Heck, children do it: if you tell a child not to eat his dessert early, and he eats a cookie, you can pretty much bet he’ll start debating with you about whether a cookie is a “dessert” or just a “snack.” That gradually evolves into whether a houseboat is a “vessel,” or what is chicken? Law just is the use of language, and there is no qualitative distinction between “elite” and “popular” understandings of language; there’s a spectrum of understanding based on our background, our research, the likely consequences of different interpretations, and various other factors. And that is just what “ordinary” language users do all the time.
Of course, the “elites” may adopt a wrong interpretation of a term, and stick to it, but in those cases, the “elite” understanding is not wrong qua “elite,” but qua understanding. The problem there is that the cases are wrongly decided, not that the popular/elite distinction has in some way broken down. A parent might indeed wrongly decide that a cookie is a dessert, but not because he’s an adult; it’s just wrong (if it is wrong) because a cookie not a dessert.
Because there is no qualitative difference between “popular” and “elite,” but the two float back and forth and interact with each other, with “popular” langauge-users employing “elite” methods, and the “elite” trying to understand what “popular” language-users meant when they spoke, the purported distinction between the two is not a useful device for legal interpretation, and is a basically hypothetical and unnecessary dispute.
[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.
PLF just got some really gratifying news from Kentucky, where state officials have acknowledged that the Competitor's Veto law is unconstitutional for all transportation companies.