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The Nature of Legal InterpretationWhat Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy$
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Brian G. Slocum

Print publication date: 2017

Print ISBN-13: 9780226445021

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226445168.001.0001

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Originalism, Hermeneutics, and the Fixation Thesis

Originalism, Hermeneutics, and the Fixation Thesis

Chapter:
(p.130) Chapter Six Originalism, Hermeneutics, and the Fixation Thesis
Source:
The Nature of Legal Interpretation
Author(s):

Lawrence B. Solum

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226445168.003.0006

Originalism is certainly controversial. Almost every version of originalism claims that the communicative content of the constitutional text is fixed at the time each provision is framed and ratified and that contemporary constitutional practice should be constrained by this fixed original meaning (unless the text is amended). In this chapter, the author develops a case for the claim that meaning is fixed and responds to an objection raised by Francis J. Mootz in Getting Over the Originalist Fixation. (Mootz 2016) Mootz’s objection draws on the wonderful and elegant account of hermeneutics developed by Hans-Georg Gadamer in his magnum opus, Truth and Method. (Gadamer 2004) The author’s reply draws on Gadamer as well, arguing that his views are broadly consistent with the idea of fixation—although taking his views into account may contribute to the enterprise of clarifying originalist claims about the nature of the original meaning of the constitutional text. The chapter begins by investigating the nature of originalism itself.

Keywords:   originalism, Gadamer, constitutional interpretation, fixation thesis

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