The 'Fixation Thesis' and Other Falsehoods

58 Pages Posted: 3 May 2019 Last revised: 24 Jun 2020

See all articles by Frederick Mark Gedicks

Frederick Mark Gedicks

Brigham Young University - J. Reuben Clark Law School

Date Written: April 15, 2019

Abstract

This Article challenges the so-called “fixation thesis” of public-meaning originalism. This thesis holds that the meaning of the Constitution was fixed when adopted and exists in the past as a fact, unaffected by what anyone thinks about it in the present. For public-meaning originalists, constitutional meaning is always ontologically “there” in the past to be found, even if their epistemological method sometimes fails to find it.

The fixation thesis underwrites the powerful rhetoric of fidelity that public-meaning originalists deploy against nonoriginalists, whom they deride for “making up” constitutional meaning without any interpretive theory: “it takes a theory to beat a theory.”

But there is a theory that contests public-meaning originalism, though most public-meaning originalists ignore it. Philosophical hermeneutics maintains that the meaning of any text is constituted by the present as well as the past. If this claim is true, then the fixation thesis must be false because the original public meaning of the Constitution could not exist in the past as a fact unaffected by the present. And if original public meaning is not “there” in the past to be found, public-meaning originalists are “making it up,” too, for no theory can discover meaning that does not exist.

The few public-meaning originalists who address hermeneutics mistake it for a criticism of public-meaning methodology. But hermeneutics claims that the original public meaning does not exist, not that public-meaning methods do not work: original public meaning is simply not “there” in the past to be found. It doesn’t take an interpretive theory to beat public-meaning originalism—an ontology will do.

Keywords: Fixation, Gadamer, Hermeneutics, Interpretation, Originalism, Public Meaning, Constitution, Ontology

Suggested Citation

Gedicks, Frederick Mark, The 'Fixation Thesis' and Other Falsehoods (April 15, 2019). 72 Florida Law Review 219 (2020), BYU Law Research Paper No. 19-11, Available at SSRN: https://ssrn.com/abstract=3372539

Frederick Mark Gedicks (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

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