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56 Ga. L. Rev. 1 (2021-2022)

handle is hein.journals/geolr56 and id is 1 raw text is: FINDING ORIGINAL PUBLIC MEANING James A. Macleod* Textualists seek to interpret statutes consistent with their original public meaning (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute's terms at the time of their enactment? But as the Supreme Court's decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn't preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissents vehemently disagreed over the statute's bar on discrimination because of sex-each side claiming that OPM clearly supported its interpretation. So who, if anyone, was right? And how can textualists' supposedly commonsense OPM inquiry yield such divergent conclusions? This Article introduces a new applied-meaning-experiment method to answer those questions and develop the theory of textualism. The method asks ordinary readers to apply the relevant statutory language in context, under experimental conditions that minimize the effect of potential biases or differences between enactment-era and present-day usage. For Bostock, the applied-meaning-experiment method reveals that the majority was probably right: textualists' ordinary reader at the time of Title VII's enactment would most likely have understood it to bar LGBT discrimination. The insights from * Assistant Professor of Law, Brooklyn Law School. For helpful feedback, thank you to Mitch Berman, Anya Bernstein, Jessica Bulman-Pozen, Guy Uriel-Charles, Anuj Desai, Mihailis Diamantis, Benjamin Eidelson, William Eskridge, Ellen Katz, Josh Knobe, Anita Krishnakumar, Guha Krishnamurthi, Brian Leiter, Kate Levine, David Noll, Samuel Rickless, Scott Shapiro, Jocelyn Simonson, Brian Slocum, Lawrence Solan, Roseanna Sommers, Glen Staszewski, Kevin Tobia, Maggie Wittlin, and participants in the University of Chicago Law School's New Frontiers in Experimental Jurisprudence Conference, Iowa Law School's Experimental Jurisprudence Seminar, the Michigan Law School Junior Scholars Conference, the Yale Law School Legislation Roundtable, the AALS New Voices in Legislation Panel, the Richmond Law School Junior Faculty Forum, and the SEALS Annual Call-for-Papers Award Panel. For excellent editing, I thank the Georgia Law Review. The Brooklyn Law School Faculty Fund provided financial support. 1

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