The fourth paper at the USD originalism works-in-progress conference was by Lawrence Solum (Georgetown), titled "The Fixation Thesis: The Original Meaning of Constitutional Text" (I believe it is not yet available on line). Mitch Berman (Texas) was the commentator.
This is a hugely important paper about framing arguments over constitutional meaning, although it doesn't have any novel theory (and indeed arguably is close to tautological). The point is, simply, of the "fixation thesis" is nothing more (or less) than that the Constitution had a fixed communicative content at the time it was adopted.
Most people, if pressed, would probably agree; Mitch Berman, the commentator and no friend of originalism, seemed to — and the paper struggles a little to find someone who doesn't. (As an aside, it might be that as to some parts of the Constitution (a) the meaning is vague or ambiguous; (b) the meaning delegates to future generations the power to give content; or (c) the meaning has been lost. None of these possibilities refute the thesis — the first two just say that the fixed meaning lacks definite substance in some cases, and the latter doesn't deny a fixed meaning but just says we can't find it).
The fixation thesis in itself doesn't say anything about modern constitutional meaning. But taking this claim as a starting point has consequences for the debate over modern meaning. If a constitutional provision had one meaning at time x (adoption), and now is now given a different meaning at time y (now), something happened in the interim to change the meaning. This then connects with Steve Sachs' paper for the conference, which asks about the validity of constitutional change. The question becomes framed as: was the "something" that changed the meaning a valid way to change it?
The answer might well be yes (obviously it is, if the "something" is a duly ratified amendment). If you believe in precedent, then you might think an erroneous court decision changes the meaning (but think that is acceptable). Similarly, one might conclude that sustained unquestioned executive branch practice should change constitutional meaning. Or that modern pragmatic considerations should change the meaning, if the initial meaning becomes impractical in light of modern circumstances. The point is that the change must be justified against a initial baseline of the meaning at the time of adoption.
Although this might all seem sort of obvious, it often gets lost in debates over modern constitutional meaning. It's frequently said that there are various ways of finding modern meaning, including original meaning but also later practice, precedent, institutional capacity, moral and pragmatic considerations, etc. While that is true, putting it this way tends to collapse all these "methods" into a single enterprise called modern interpretation in which all can be invoked (if supportive) but without any priority or elaborated justification. The fixation thesis implies (and Sachs' paper says directly) that the initial communicative meaning is a baseline and the other methods must be justified as reasons to depart from it.
I think I had always thought this implicitly (it's sort of an unstated premise of most of my scholarship, which focuses on what Solum calls the communicative meaning of particular constitutional provisions, typically without making claims about what that means for modern law). It's very helpful to have it spelled out.
Posted at 6:31 AM