The Circularity of the Fixation Thesis

A variation on the interpretation thesis (see here and here) holds that a nonoriginalist conception of interpretation is somehow logically or conceptually impossible, leaving originalist conceptions as the only available candidates. Larry Solum seems to take something like this view when he argues that the linguistic meaning of the Constitution has to be its original public meaning because the fixation of meaning at the time of utterance is logically necessary for written communication over time. But this argument assumes its conclusion. Whether and to what extent communication should be the goal of constitutional interpretation—in the particular sense of receiving a message conveyed by specific persons at some prior point in time—is exactly the issue in dispute between originalists and nonoriginalists. If the constitutional text functions (or ought to function) instead (or also) as a conventionalist focal point or a medium for popular constitutionalist discourse, communication (from the framers and ratifiers to contemporary interpreters) is not the operative issue. Solum’s argument describes what logically must be the case only on the assumption that the activity he is describing has a contested purpose or function. By taking sides in that contest, he gives up describing the concept as it is—i.e., vague or ambiguous, and hence contested—and his conclusions are unsound as a result.