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11/07/2021

Michael Dorf: Gadamer, Gedicks, and Original Public Meaning
Michael Ramsey

Michael C. Dorf (Cornell Law School) has posted If It Ain’t Broke, Don’t Fixate on It: Gadamer, Gedicks, and Original Public Meaning (Florida Law Review Forum, Vol. 72, No. 66, 2021) (10 pages) on SSRN.  Here is the abstract:

In The “Fixation Thesis” and Other Falsehoods, Professor Frederick Mark Gedicks argues that public meaning originalists are mistaken in their claim that the Constitution today means just what it meant when it was adopted. Unlike living constitutionalists who say that the document’s meaning has changed to keep up with the times, Gedicks denies that we have unmediated access to an original public meaning relative to which we could even identify or measure departure. Leaning on a theory of hermeneutics developed by philosopher Hans-Georg Gadamer, Gedicks takes aim at the fixation thesis—Professor Lawrence Solum’s term for the proposition that the meaning of any constitutional text was fixed at the time of its adoption.

At Legal Theory Blog, Larry Solum adds: 

For my reflections on an argument very similar to that made by Gedicks, see Originalism, Hermeneutics, and the Fixation Thesis in The Nature of Legal Interpretation, edited by Brian Slocum.