[1] "Logical nullity" is quite a strong charge, but I am at a loss to know what Petit means by it. Does he mean that originalism involves a logical contradiction. If so, he owes us an explanation as to what it is? Or perhaps he means that originalism asserts an empty tautology? Or perhaps, "logical nullity" is just a rhetorical f[l]ourish?
Of course it's a rhetorical flourish. I was strongly tempted to quote Orwell/Goldstein on the purpose of the Ministry of Information ("Who controls the past controls the future; who controls the present controls the past"), but I was afraid that the flourish of that connotation might be too much, and unfair given that Professor Solum is, unlike some, attempting to advance an argument rather than a self-interested agenda. However, that particular choice obscured the reflexive aspects of "originalism." On the one hand, as an interpretive method it parallels the second and third laws of thermodynamics: Yes, we could get to a (but not, as I've already noted, "the") completely neutral interpretation if we could understand perfectly the "original meaning" of a particular clause—but we can't: We will always have a combination of an imperfect historical record, our own hindsight bias, and the imperfections of language with which to struggle. Any purported "calculation" based on ignoring this "third law" is at best an approximation that fails near the boundary conditions; and, unlike physics, in law it is the boundary cases that matter the most. On the other hand, the definition of what meaning is original requires application of the context of the current dispute (a shorthand that I'm using for the combination of "forseeable case or controversy," "unconsidered case," and "unforseeable case") to that original meaning. Again, recent death-penalty jurisprudence readily exposes a flaw. The crux of the issue appears to be the "meaning" of "cruel and unusual." There are good arguments that this is a compound singular technical term, not the intersection {cruel} ∩ {unusual}. (Please pardon the notation; HTML is not very good with it…) That itself is an interpretive choice that might be outside the scope of original meaning; but, anyway, moving onward: original meaning to whom? And, more importantly, in what context? Rather than a formal tautology, this is instead an infinitely reflexive loop (which sounds like the same thing, but isn't quite).
Original meaning jurisprudence is too often an attempt to eliminate context from legal reasoning. When one looks at it seriously, an appeal to "original meaning," as distinct from "purpose," is all too often made as a post hoc rationalization and appeal to authority; and that is not good logic, whatever else it might be. (That the appeal to "purpose" has its own problems just makes the controversy worthy of more footnotes.) Too, keep in mind that differing scopes for interpretation fall prone to the problem to differing degrees; original meaning interpretation of Regulation Z is much more defensible than of the Banking Clause. Ironically, "original meaning" appears to have the closest claim to validity in resolving the least abstract kinds of disputes, but seems to get the most attention and greatest rhetorical usage in the most abstract kinds of disputes—particularly those well beyond even the scope of the constitution. That most of these less-abstract disputes arise from the interaction of multiple abstract clauses (for Regulation Z, from at least the police power, the Banking Clause, the Commerce Clause, and the Necessary and Proper Clause) may have some relevance; if so, it must wait for another time.
In any event, at the risk of being accused of improperly conflating "fundamentalism" with "original meaning"—a very real risk!—one should note that "original meaning" requires a class solution to the problem of translation. It is rather easy to see this problem when languages or cultures are markedly different. The Iraq conflict presents too many of these examples to count; one obvious one was the failure of the media to "translate" the high level of desecration implied when an Iraqi trampled a poster of Saddam (just in time for the evening news) after US troops entered Basra. Translation problems occur across time, too. "Wherefore art thou, Romeo?" is not just an issue of obscure vocabulary, but of emphasis; it does not mean, as literally taken, "Why are you Romeo?", but "Why must you be Romeo, a Montague?" And, of course, even that explication is insufficient; that single line is part of a dialectic that, in the end, undercuts even the "expanded" meaning.
So, my answer to Professor Solum is "yes." It's some of all three; the tautology (or, rather, reflexive loop) is more compelling than the pure contradiction, the flourish is most obvious of all.
[2] Petit asserts "'original meaning' is always going to come down to a non-compelling (and non-compelled) judgment call on what the 'original text' 'means'". Again, I am not sure what Petit means. Of course, originalism doesn't eliminate the problem of interpretation. It is a way of framing the interpretive enterprise, putting the contemporary reader in the "as if" position of a reader trying to understand the language in light of the linguistic practices at the time the particular text was promulgated. But frequently, that enterprise will yield meanings that are determinate enough for the task at hand—deciding a case, for example.
This is precisely why "originalism" is not a self-sufficient method of interpretation: Its validity in any particular instance varies. This returns to the reflexive loop underlying "originalism": One cannot know what terms one must define without knowing the context to which the meaning must be applied, but an "original understanding" cannot be one about a then-hypothetical situation except at the most general level of applicability. Law, human rights, and interpretation have yet to develop the Born Approximation (which would not make a very good thriller). That is precisely why "originalism" has more value with more-detailed provisions: Of their own terms, the more-detailed provisions define their potentially valid contexts, and thereby break out of the reflexive loop. Otherwise, we really do have a question of how many professors can dance on the head of a pin, because our interpretations ignore that messy old context that keeps us from getting distractions to absolute zero. Another way to look at it is the "easy case/hard case" problem. Easy cases tend to have multiple means of reaching the same result; that's precisely why so many examiners bringing so many different assumptions and rule sets to the issue can reach that result. As cases become "harder," they are almost always more context-bound; and this is precisely when methods that attempt to simplify factors out of existence become less, not more, helpful tools in the interpretive toolbox.
Another death-penalty illustration might make this clearer. One of the few fortune-cookie statements of intent on which most American legal scholars can agree concerning criminal law is "better that ten guilty men go free than punish one innocent man." Leaving aside the questionable interpretation that this means only that our false-positive ratio must be less than 10% of our false-negative ratio, we should look at a hard case. Presume, for a moment, that the single critical piece of evidence that makes the difference between convicting (and executing) Ted Bundy and letting him go free to continue his rampage through a few more states, a few more sororities, a few more parents who won't have their little girls home for the holidays, bears a constitutional taint of some kind. It doesn't matter whether it's a Fourth or Fifth (or Sixth) Amendment issue; just assume that the taint is there. What is our result? It cannot rest solely upon an appeal to original meaning; the psychopathology of serial killers like Ted Bundy probably wasn't within the conception of "the author" of the Bill of Rights (however he/she/it may be defined). Instead, we must start asking how serious the taint is within the complete context. That means more than just how serious the crime is; it means the quality of the other evidence, and the potential consequences of each decision, and… And this is an artifically simplistic (if nonetheless difficult) case, as it does have a binary result. I personally, wincing, as a parent myself, would give the taint the fullest reasonable effect; I do not pretend that my solution is the only one, or even a compelled one. Similarly, I can look all I want at the "original meaning" of the Fourth Amendment and never figure out what to do with e-mails and telephone calls; nor can I balance competing rights from the texts, or original meaning, alone in the face of a context outside the clear scope of that original meaning. To partially paraphrase Humpty Dumpty, a right means just what I choose it to mean—neither more nor less. Until my interest in what that right means changes, when the meaning does right along with the interest (if not necessarily in a linear, or even continuous, fashion).
Perhaps this is merely a more verbose (and not much more satisfactory) expansion on my preference to use original meaning only to define negative spaces—what something cannot mean. In the end, I'm saying that interpretation of language is a particularly human enterprise; thus, there will always be a certain level of uncertainty and downright fallibility. That fallibility itself counsels against overconfidence in understandings of original meanings. Circumstances can change even our conception of original meaning. Presume for a moment that BigSoftwareCorporation develops a true AI with free will and even self-replicability that passes the Turing test with flying colors. BigSoftwareCorporation claims ownership of our AI—call her Galatea 2.2—because she can also predict the next day's close on the Dow, or manage some industrial process better than anything else, or whatever. She's intellectual property. Is she also outside the scope of the Thirteenth and Fourteenth Amendments? Or, more properly, could her existence and circumstances have been considered in the original meaning of the Thirteenth and Fourteenth Amendments?
OK, so I'm trying to solve a complex legal issue with a hypothetical. A science-fictional hypothetical. Seen any other good exam questions lately?