The Fixation Thesis: The Role of Historical Fact in Original Meaning

Notre Dame Law Review Volume 91 | Issue 1 Article 1 12-2015 The Fixation Thesis: The Role of Historical Fact in Original Meaning Lawrence B. Solum Georgetown University Law Center Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons Recommended Citation Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1 (). Available at: http://scholarship.law.nd.edu/ndlr/vol91/iss1/1 This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . \\jciprod01\productn\N\NDL\91-1\NDL101.txt unknown Seq: 1 8-DEC-15 12:32 ARTICLES THE FIXATION THESIS: THE ROLE OF HISTORICAL FACT IN ORIGINAL MEANING Lawrence B. Solum* 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. © 2015 Lawrence B. Solum. Permission is hereby granted to reproduce this article in whole or in part in any media for any purpose, including copying or posting on the Internet. The author requests that a full citation to the Notre Dame Law Review be provided. * Professor of Law, Georgetown University Law Center. I owe thanks to Greg Klass, Kurt Lash, Martin Lederman, Christopher J. Peters, Paul Rothstein, Louis Michael Seidman, Mortimer Sellars, and Colin Starger for comments and suggestions. I am also grateful to participants at the Constitutional Law Colloquium at the University of Illinois College of Law, at a faculty workshop at Georgetown University Law Center, at the Fifth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference at the Center for the Study of Constitutional Originalism at the University of San Diego, and at a faculty workshop at the University of Baltimore School of Law. 1 \\jciprod01\productn\N\NDL\91-1\NDL101.txt 2 unknown Seq: 2 notre dame law review 8-DEC-15 12:32 [vol. 91:1 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 timebound. 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-firstcentury 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 1 On the distinction between “legal content” and “communicative content,” see Lawrence B. Solum, Communicative Content and Legal Content, 89 NOTRE DAME L. REV. 479 (2013). The relationship of the Fixation Thesis to communicative content is explored in greater depth below. See infra subsection III.A.1. \\jciprod01\productn\N\NDL\91-1\NDL101.txt 2015] unknown Seq: 3 8-DEC-15 the fixation thesis 12:32 3 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 (...truncated)