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09/20/2019

Frederick Gedicks: The Fixation Thesis?
Michael Ramsey

Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted The Fixation Thesis? (72 Florida Law Review (forthcoming March 2020)) (61 pages) on SSRN.  Here is the abstract:

This Article challenges a foundational tenet of public-meaning originalism. This theory claims that judges properly interpret the Constitution only by discovering and applying its “original public meaning”—how the public understood the constitutional text at the time it was adopted. This claim rests on the so-called “fixation thesis”: the meaning of the Constitution was fixed when adopted and exists in the past, independently of the present, as a discoverable fact. In this view, original public meaning is always ontologically “there” in the past to be found, even if epistemologically we sometimes fail to find it.

Why does this matter? This unexamined assumption underwrites the powerful rhetoric of fidelity public-meaning originalists deploy against nonoriginalists, whom they deride for “making up” constitutional meaning without any interpretive theory. This installs public-meaning originalism as the status quo which nonoriginalists must displace: “it takes a theory to beat a theory.”

Most public-meaning originalists ignore the hermeneutic critique that the meaning of any text is mutually constituted by past and present. If this claim is true, the fixation thesis is false, because original public meaning would not then exist in the past as a fact unaffected by the present. And if original public meaning isn’t “there” in the past to be found, public-meaning originalists must be “making it up,” too, for no theory can discover meaning that doesn’t exist.

A few public-meaning originalists have responded to hermeneutics as an epistemological criticism aimed at the inability of public-meaning method to accurately discover original public meaning. But hermeneutics is an ontological argument that original public meaning does not exist, that there’s no such meaning in the past to be found. The failure of these originalist responses leaves hermeneutic criticism unanswered and public-meaning originalism without foundation. It doesn’t take a theory to beat originalism—an ontology will do.