The fixation thesis: the role of historical fact in original meaning.

• Author: Solum, Lawrence B.
• Position: Introduction through III. Clarifications and Objections A. Clarifying the Fixation Thesis 2. Fixation of Expression-Token Meaning, Not Expression-Type Meaning b. Fixation of Communicative Content of the Official Token Constitutional Text, Not the Type, p. 1-39

INTRODUCTION

The meaning of the constitutional text is fixed when each provision is framed and ratified: this claim can be called the Fixation Thesis. This thesis is one of two core ideas of originalist constitutional theory: the other is the Constraint Principle, which holds that the original meaning of the constitutional text should constrain constitutional practice.

From one perspective, the Fixation Thesis is obvious. Imagine that you are reading a text written quite some time ago--a letter written in the thirteenth century, for example. If you want to know what the letter means (or more precisely, what it communicates), you will need to know what the words and phrases used in the letter meant at the time the letter was written. Some words may be archaic--no longer used in contemporary English. Other words may have changed their meaning over time--and you would want to know what their meaning was in the thirteenth century. And meaning is not just a function of the meaning of individual words and phrases; it is also a function of syntax (or grammar). Syntax can change over time; so you might need to know something about how thirteenth-century syntax differs from contemporary syntax if you wanted to understand a letter written in the thirteenth century.

Moreover, the meaning of the thirteenth-century letter is likely to be a function of the context in which it was written, but that context is also time-bound. A sentence in a letter written by a baron preparing for war might mean something different than an identical sentence in a letter written by a bishop preparing for an ecclesiastical conclave. The literal meaning of the two sentences might be the same, but as lawyers well know, the full meaning of a writing may depend on context.

All of this seems uncontroversial when the text we are interpreting is a letter. It is hard to imagine someone saying that we should use twenty-first-century linguistic practices to understand a thirteenth-century text. And it would be very odd indeed for someone to suggest that we could better understand the letter if we were to disregard the thirteenth-century context in which it was written and instead imagine that the letter had been written today under different circumstances. Ignoring the time and place at which the letter was written would seem like a strategy for deliberate misunderstanding!

So the Fixation Thesis seems intuitively obvious, even self-evident. But in constitutional theory, the idea that meaning is determined by the original communicative context and linguistic facts at the time of writing seems, at least on the surface, to be controversial. Some living constitutionalists appear to deny the Fixation Thesis when they say that the meaning of the Constitution changes over time. Perhaps, they are arguing that an ever-evolving contemporary meaning of the constitutional text that should guide constitutional practice.

But things may not be as they seem. Perhaps living constitutionalists actually accept that the linguistic meaning (or more precisely communicative content) of the constitutional text is fixed, but argue that it is the legal meaning (or more precisely legal content) of the Constitution that changes over time. (1) This point can be expressed more precisely as follows: living constitutionalists might accept the Fixation Thesis but deny the Constraint Principle. Or perhaps they accept both fixation and constraint, but believe that the actual meaning of specific provisions of the constitutional text is underdeterminate--perhaps because it is ambiguous, vague, open, or textured, or because there are gaps or contradictions in the text. Living constitutionalists might believe that changing legal content can almost always be understood as consistent with the fixed communicative content of text.

Here is the roadmap. We will begin, in Part I, by examining the role of the Fixation Thesis in contemporary originalist constitutional theory. Our next step, in Part II, is to state the affirmative case for the Fixation Thesis. This is the heart of this Article and readers who are looking for the gist might limit themselves to the discussion here. Part III explores a variety of objections to the Fixation Thesis and clarifies the content of the thesis in light of the answers to these objections. Several theoretical views that reject (or seem to reject) the Fixation Thesis are examined in Part IV. Part V applies the Fixation Thesis to three examples, "domestic violence," "cruel and unusual punishment," and "privileges or immunities of citizens of the United States." The conclusion assesses the landscape of constitutional theory in light of the arguments presented.

1. THE ROLE OF THE FIXATION THESIS IN ORIGINALIST CONSTITUTIONAL THEORY

   We can begin by asking what the word "originalism" means and how the term came into being. Once we have an understanding of originalism in place, we can formulate a preliminary version of the Fixation Thesis and explain the role that it plays in the constitutional theories that are members of the originalist family.

   1. What Is Originalism?

      What is originalism? (2) "Originalism," the word, was coined by Paul Brest in 1980, in a law review article entitled The Misconceived Quest for the Original Understanding. (3) Brest stipulated the following definition: "By 'originalism' I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters." (4)

      So the word "originalism" is a technical term, used in academic and political discourse about constitutional law and theory. Like many technical terms, the meaning of "originalism" is a function of both stipulated definitions (like Brest's) and patterns of usage among linguistic subcommunities (e.g., constitutional lawyers and constitutional theorists). The possibility that the meaning of "originalism" is subject to disagreement is considered below. (5)

      Brest's article did not have much to say about the content of the "familiar approach" and he did not provide a list of the cases or articles to which he was referring. Nonetheless, there were ideas in the jurisprudential air suggested by Brest's definition. What we might call "proto-originalist" ideas appeared in the writings of Robert Bork, (6) then-Associate Justice William Rehnquist, (7) and Raoul Berger (8) in the 1970s: it is not clear that these protooriginalists actually had anything like a full-blown theory of originalism, and their writings are a melange of many ideas--some of which may not be originalist at all.

      The public prominence of originalism is usually traced to a speech before the American Bar Association, delivered in 1985 by then-Attorney General Edwin Meese, (9) who later advocated a "jurisprudence of original intention." (10) The proto-originalists emphasized original intentions, but their writings did not provide a theory of original meaning, nor did they have a clear account of the role that original meaning should play in constitutional practice. Proto-originalism might be described as a tendency rather than a full-fledged constitutional theory.

      The proto-originalist jurisprudence of original intentions was subjected to a sustained academic critique, with Brest's article as the opening salvo (11) and key contributions from Jefferson Powell (12) and Ronald Dworkin (13)--and many others too numerous to name. Much of the criticism focused on the difficulty of ascertaining the original intentions of a document drafted by a multimember constitutional convention and ratified by an even larger group who met in conventions convened in each state. Although there were defenders of intentionalism (notably Richard Kay (14)), Justice Scalia urged originalists to "change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning." (15) Scalia's suggestion was taken up, and the resulting theory (which I shall call "public meaning originalism" (16)) was elaborated by Gary Lawson, (17) followed by Steven Calabresi and Saikrishna Prakash. (18) In the late 1990s, Randy Barnett (19) and Keith Whittington (20) began to build what has come to be called the "new originalism." (21) It was at this stage that some originalists began to endorse the interpretation-construction distinction, which marks the difference between the discovery of the linguistic meaning of the constitutional text ("interpretation") and the determination of the legal effect associated with the text ("construction"). (22)

      Some new originalists (those who accepted the interpretation-construction distinction and also believed that the Constitution contains some provisions that are vague or open textured) were led to the conclusion that the original meaning of the constitutional text does not fully determine the answers to all constitutional questions. Thus, some new originalists posit the existence of "construction zones"--where the resolution of constitutional disputes will require judges and officials to develop constitutional doctrines and practices on the basis of normative considerations that are not fully determined by the communicative content of the constitutional text. (23)

      Both the interpretation-construction distinction and the construction zone are controversial. John McGinnis and Michael Rappaport have suggested that their version of originalism, which focuses on the original methods of constitutional interpretation, can eliminate the need for constitutional construction (or eliminate the construction zone). (24) Gary Lawson (25) and Michael Paulsen (26) have argued the construction zone can be contained or eliminated by constitutional default rules: for example, there might be a constitutional default rule that required judges to defer to the political branches when the constitutional text does not provide a clear answer to a constitutional question. (27)

      Having set the stage through this very brief historical survey of originalism, we are...