Abstract

Public-meaning originalists contend that judges properly interpret the Constitution only when they discover and apply its “original public meaning”—how the public understood the Constitution at the time it was adopted. Public-meaning originalism is premised on the “fixation thesis”—the meaning of any constitutional text is fixed when it is adopted. Concerns of the present, therefore, cannot affect constitutional meaning. Public meaning originalists acknowledge that the search for the fixed original meaning is not always successful, but it is always ontologically “there” to be found, even if epistemologically we sometimes fail to find it. The fixation thesis underwrites the powerful rhetoric of fidelity originalists deploy against nonoriginalists. Originalists insist that judges who interpret the Constitution using nonoriginalist approaches are “making up” constitutional meaning. But if original public meaning does not exist in the past as a fact which present interpreters can objectively retrieve, public-meaning originalists are equally guilty of “making it up.” The public-meaning enterprise thus rises or falls with its ontological claim that original public meaning is a fact in the past which anyone from the present can recover and apply without altering its objective character. Most public-meaning originalists have ignored the philosophical hermeneutic thesis that any investigation of the past is also shaped by the perspective of the interpreter in the present; the meaning of any text is mutually constituted by past and present. In this view, meaning does not exist in the past as a fact, but is created by the very interpretive effort to find it. Only two public-meaning originalists have defended the fixation thesis against this critique. Keith Whittington rejected it outright in his early work, while Lawrence Solum recently argued its compatibility with fixation. Both arguments fail. “Fixed constitutional meaning” and the other purported objectivities in which public-meaning originalists wrap their theory are no less touched by interpretive subjectivity than the theories new originalists attack. Like all human inquiries into proper action in particular situations, constitutional interpretation is necessarily affected by particularities of the judge, the issue before her, and their relation to constitutional history and contemporary constitutional imperatives. None of this is subject to adjudication by a priori rule or objective method, as public-meaning originalists imagine.No one is “faithfully” interpreting the Constitution in the way public-meaning originalists imagine. Everyone is doing the same interpretive thing, trying to connect the exigencies of the present with a document more than two centuries in force. The fixation thesis is false.

Degree

College and Department

Humanities; Comparative Arts and Letters

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