Getting Over the Originalist Fixation
Getting Over the Originalist Fixation, in The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy (Brian G. Slocum, ed., University of Chicago Press 2017).
New Originalism is founded on the "Fixation Thesis," the claim that the meaning of a legal text is fixed at the time of enactment. Professor Larry Solum has done the best job of articulating this thesis and explaining that it, in itself, does not have normative implications for legal theory. Using Solum as my interlocutor, I argue that the Fixation Thesis is false. Drawing from the Philosophical Hermeneutics of Hans-Georg Gadamer, I argue that the Fixation Thesis falsifies the experience of meaning as the result of hermeneutical activity. By neglecting the ontology of human understanding, legal theorists permit the New Originalist program to get off the ground with an intuitive appeal to a "fixed" meaning. Later efforts to argue on behalf of a "living constitution" wilt in the face of the desire for constraint; who can successfully argue against the comforting fantasy of judges who discern objective meaning without having to make judgments? The Fixation Thesis is aptly named. As Freud emphasized, fixations are a failure to achieve full maturity by getting stuck at a stage of development. I argue that the Fixation Thesis represents a stunted inability to move beyond a certain stage of development in legal theory, and that we are best counseled to overcome the Fixation Thesis therapeutically. The desire for certainty is a powerful motivating force in our lives, giving rise to all manner of confused self-understandings that cloak our nature and provide some measure of psychological comfort in the face of our human condition. As painful as it may be, though, it is time to wean ourselves of the Fixation Thesis in law.
The University of Chicago Press
Mootz, Francis J. III, "Getting Over the Originalist Fixation" (2017). McGeorge School of Law Scholarly Books. 79.