Lawprof Larry Solum of the Legal Theory Blog laments:
From the perspective of a constitutional theorist, I am frequently baffled, frustrated, and confused by the carelessness with which the theoretical foundations of debates about original meaning are articulated, both in the blogosphere and in contemporary constitutional scholarship. How can it be that the distinction between the various forms of originalism are still ignored? Can anyone really have missed the shift in originalist thinking from original-intentions originalism to original-meaning originalism? Most contemporary originalists believe that the relevant inquiry is into the original "public meaning" of the constitutional provision at issue. Hardly anyone thinks that the intentions, expectations, or purposes of the framer's are independely entitled to interpretive authority--although they may be evidence of original public meaning.
I definitely share Larry Solum's frustration. Sadly, the confusion is not confined to the blogosphere and "contemporary constitutional scholarship." Supreme Court Justice Stephen Breyer also does not get the distinction between original meaning and original intent (or at least does not realize its importance), as I explain in Part III of my forthcoming review of Active Liberty: Interpreting our Democratic Constitution, his recent book on constitutional theory. Breyer also conflates originalism and textualism (which need not require any reliance on original meaning OR intent). These two distinctions are not just academic hairsplitting, because original intent, original meaning, and textualism often lead to widely differing results in real-world legal controversies.
Perhaps future Supreme Court nominees should be required to explain the difference between original meaning and original intent during their confirmation hearings! It would certainly be more fun to watch than the hearings we have now - at least for Larry Solum and me.