Getting Over the Originalist Fixation

38 Pages Posted: 22 Jun 2015

See all articles by Francis Joseph Mootz III

Francis Joseph Mootz III

University of the Pacific - McGeorge School of Law

Date Written: June 21, 2015

Abstract

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.

Keywords: Fixation Thesis, New Originalism, Constitutional Interpretation, Lawrence Solum, Philosophical Hermeneutics, Hans-Georg Gadamer, Paul Ricoeur, Interpretation

Suggested Citation

Mootz, Francis Joseph, Getting Over the Originalist Fixation (June 21, 2015). Available at SSRN: https://ssrn.com/abstract=2621284 or http://dx.doi.org/10.2139/ssrn.2621284

Francis Joseph Mootz (Contact Author)

University of the Pacific - McGeorge School of Law ( email )

3200 Fifth Avenue
Sacramento, CA 95817
United States

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