Response to Frederick Mark Gedicks, The “Fixation Thesis” and Other Falsehoods
In The “Fixation Thesis” and Other Falsehoods, Professor Frederick Mark Gedicks argues that public meaning originalists are mistaken in their claim that the Constitution today means just what it meant when it was adopted. Unlike living constitutionalists who say that the document’s meaning has changed to keep up with the times, Gedicks denies that we have unmediated access to an original public meaning relative to which we could even identify or measure departure. Leaning on a theory of hermeneutics developed by philosopher Hans-Georg Gadamer, Gedicks takes aim at the fixation thesis—Professor Lawrence Solum’s term for the proposition that the meaning of any constitutional text was fixed at the time of its adoption.
Gedicks critiques a core premise of originalists like Solum and Professors Keith Whittington and Randy Barnett, who, he says, think that “original public meaning is an object existing independently of the present, always ‘there’ in the past to be found.” Moreover, Gedicks argues that public meaning originalists have erred in responding to criticisms like his, mistaking an ontological objection—one about the nature of textual meaning—for an epistemological concern about obstacles to our fully recapturing original meaning. That response fails, Gedicks says, because the problem is not our inability to see what is out there; the problem is that there is no there out there, at least not in the sense of a meaning that exists independent of anyone’s role in producing it.