78 Pages Posted: 4 Feb 2015 Last revised: 19 Jan 2016
Date Written: August 5, 2015
The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice — paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis — the claim that the linguistic meaning (or communicative content) of the constitutional text was fixed when each provision was framed and ratified. Although the Fixation Thesis is a basic assumption of almost every version of originalism or textualism, it has never been the explicit focus of an extended examination and defense. This essay remedies that lacuna by providing a precise formulation of the fixation thesis, making the affirmative case for fixation, and answering potential objections. The most important claim made by the essay is that the Fixation Thesis is entailed by our common sense understanding of how communication works. Communicative content is created by using conventional semantic meanings (fixed by linguistic practices at the time words are used) and context (which is fixed by the understanding of author and reader at the time a writing is created).
The essay proceeds in five steps. Part One clarifies the Fixation Thesis by situating it in the content of contemporary debates about originalism. Part Two states the affirmative case for the fixation thesis and articulates several versions of the argument corresponding to different members of the originalist family of constitutional theories. Part Three provides additional clarification and answers objections. Part Four examines rival theories of constitutional meaning that deny fixation. Part Five explores two examples, “cruel and unusual punishment” and “privileges or immunities of citizens of the United States.”
This is the final published version of the "The Fixation Thesis" and it replaces the earlier versions previously available at this location.
Suggested Citation: Suggested Citation
Solum, Lawrence B., The Fixation Thesis: The Role of Historical Fact in Original Meaning (August 5, 2015). 91 Notre Dame Law Review 1 (2015). Available at SSRN: https://ssrn.com/abstract=2559701 or http://dx.doi.org/10.2139/ssrn.2559701
By John Mikhail
By Brian Leiter
By Jack Balkin