The following question is inspired by a point made by Justice Breyer in the following link, but Justice Scalia did not specifically address this point, so I wondered how an originalist would address it.

The following example will follow USA law-approving process, but the answer may be applied to every nation.

The following questions should be answered using an "originalist" mode of law interpretation.

Suppose the 1st of January 2000 the following law is enacted by Congress and signed by the President:

No one can kill an animal belonging to an endangered species.

Whoever kills an animal belonging to an endangered species will be punished with 20 years in jail.

The 2nd of January 2000 a national poll is conducted. The poll has a 100% coverage (every american is interviewed and every american responds). The poll asks the intervieweds "is a red squirrel an endangered species?". Everybody responds "no". I hope that, by this expedient, I have fixed the original public meaning of the statute.

The 2nd of January 2020 (20 years later), another poll is conducted. Same question, 100% coverage, everybody now responds "yes". The public meaning has changed (right?).

In fact, there are now very few red squirrels: in the past 20 years, the meat of the red squirrel was found to be very tasty, or the fur very fashion, and so on. In particular, there are 2 red squirrels in all the USA, one male and one female, so we are still in time to save the species.

  1. The 3rd of January 2020 I kill one of the two red squirrels remaining. Will I go to jail for 20 years?

If the answer to (1) is "no", I am satisfied. Thank you.

If the answer to (1) is "yes" (I will go to jail), I have a follow-up question.

  1. a. Suppose, for the sake of the argument, that on the 15th of December 1791 (the day the Eighth Amendment to the United States Constitution was adopted), nobody thought the death penalty was cruel and unusual. This is what Justice Scalia thinks (at 14:27).

b. In the law enacted the 2nd of January 2000 (the one about the endangered species), the punishment for killing an endangered species is death.

c. In the 2nd of January 2020 poll (20 years later), after the question "Is a red squirrel an endangered species?" (which everybody answer with a "yes"), there is the question "is the death penalty cruel and unusual?" to which everybody responds "yes".

d. The 3rd of January 2020 I kill a red squirrel. Will I be subject to the death penalty?

With an originalist perspective, you should answer 2d with a "yes". It doesn't matter that the public meaning has changed, you need a formal amendment to the Constitution. Then, why you answered "yes" to question 1? Why it did matter in question 1 that the public meaning has changed?

Sorry if I make confusion.

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    The question is... Convoluted. Try a better example? Because "endangered species" is a word of art already defined in law by the Washington Convention Appendices – Trish Nov 25 '20 at 1:01
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    I'm not sure this example is well chosen, because in reality, statute does and did prescribe a very specific way to determine if a species is endangered: 16 USC 1533. Surely a court, under any perspective, would follow that definition and not public opinion. – Nate Eldredge Nov 25 '20 at 1:02
  • @Trish: Yes, I believe so; I wrote my comment simultaneously to yours. Though I think the Endangered Species Act contains provisions that go beyond the terms of the Convention. – Nate Eldredge Nov 25 '20 at 1:08
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    This question seems more like an essay- OP clearly has an answer in mind that they intend to prove. – Studoku Nov 25 '20 at 2:28
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    @raffaem, read this pape, Semantic originalism by L. Solum.: papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244 – user6726 Nov 25 '20 at 16:19

What is an "endangered species"?

Normally, this would be defined in the law. In fact, the actual Endangered Species Act does exactly that:


SEC. 4. (a) GENERAL.

(1) The Secretary shall by regulation promulgated in accordance with subsection (b) determine whether any species is an endangered species or a threatened species because of ...

So, it's very clear for the purposes of this Act what an "endangered species" is. Red squirrels are an endangered species and you are going to jail if at the time you killed one the secretary of the Environment Department had determined they were and had promulgated that decision as required by the act.

However, that just begs the question ...

Let's assume the Act did not define "endangered species". It doesn't have to. So what happens?

When you go to trial, the judge will determine what "endangered species" means and whether red squirrels fit within the definition.

If you are not the first person tried under the act, then there will be a precedent that the judge will either be required to follow (if it's from a court higher in the hierarchy) or is likely to follow (if it's at the same level or lower in the hierarchy or in a parallel hierarchy).

If you are the first person, then they will probably start with a dictionary. Merriam Webster is a solid US based dictionary and it says:

a species threatened with extinction

The lawyers for both sides will introduce evidence as to what that means and if it does or doesn't include red squirrels. The polls will be inadmissible because opinions aren't allowed as evidence unless they come from an expert. So your trial is likely to see a bunch of zoologists, ecologists, climatologists, etc. giving their opinion on what endangered species are and if red squirrels are one.

It is possible that on a case decided at a given time, red squirrels are no endangered under the accepted definition and that another time, they are endangered. Whether a jurist in an originalist or not won't change that.

  • The Congress finds and declares that—he United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to—the Convention on International Trade in Endangered Species of Wild Fauna and Flora; [among other treaties] 16 U.S. Code § 1531 - Congressional findings and declaration of purposes and policy - makes CITES another source for a list of species that automagically have to be made endangered. – Trish Nov 25 '20 at 7:33

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