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.