Foolish Fixations and Useless Originalism
It is universally recognized by legal academics that originalism is not a single theory but rather a family of different approaches for judges to employ to interpret the United States Constitution. One clear example of this diversity of thought is that originalist judges and scholars who believe in "original meaning originalism" do not even agree on what is the appropriate target of their interpretive questions. Should judges be looking to what reasonable lay people thought was the original public meaning of the text when it was ratified or is it a search for what a hypothetical reasonable person would have thought the text meant? In cases where the text is legalistic, should originalists ask what legal experts in particular at the time thought the text meant, and if so, how legalistic does the text have to be to require that kind of search? There are strong disagreements among originalists on all these questions.
There are many other examples of intramural disputes among even the most sincere originalists. Most of them believe, for example, that the judicial focus should be centered around the original public meaning of the text, but a minority still believe that the proper question revolves around the original intentions of the people who wrote and ratified the text. There are also disputes among originalists over how much weight judges should give non-originalist precedent, with views ranging from no weight to some weight to the same weight judges give all precedent.
Despite all this disagreement, there is strong consensus among originalists of all stripes that there are two propositions they share and that form the bedrock for all originalist theories. In the words of Professor Lawrence Solum: "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)."
Similarly, Professors Randy Barnett and Evan Bernick have written that "originalists hold that: (1) the meaning of a provision of the Constitution was fixed at the time it was enacted... and (2) that fixed meaning ought to constrain constitutional decisionmakers today."
Virtually all originalists share these views which collectively are called "The Fixation Thesis."
But here is the problem: this basis for all originalist theory, the glue that holds the diverse elements together, the concepts that virtually all originalists agree are correct, are, in reality, completely irrelevant to how judges actually decide cases or even should decide cases. The "Fixation Thesis" should be discarded by everyone who wants to have a serious discussion about constitutional law.
The Fixation Thesis, if taken seriously, would upend much of modern constitutional law (such as equal rights for women and free speech doctrine). Most originalists, therefore, combine it with the caveat (which in reality swallows the rule) that today's judges are free to discard the original known applications of constitutional text if those applications were based, in the words of Professor Solum, on mistaken facts, or even changed "beliefs" about facts. Similarly, Professor Ilan Wurman, a self-professed originalist, says that “Originalists recognize that original meaning often requires that the application of the text evolve as modern circumstances evolve.”
And here is Justice Gorsuch: “originalism teaches only that the Constitution’s original meaning is fixed; meanwhile of course new applications of that meaning will arise with new developments ….”
In other words, most originalists today argue that, whereas the original meaning of the text never changes, the applications of that text must change as society evolves. I agree wholeheartedly with this description, but there is absolutely nothing "originalist" about it because 99% of constitutional litigation is about applications, not meanings. Here is Professor Solum, the originator of the Fixation Thesis, talking about gender equality under the 14th Amendment:
[I]n Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender. . . . Bradwell could have been understood as consistent with the [14th Amendment] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. The Constraint Principle does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.
There is a huge literature by, among, and between originalists about the differences between meaning and application, with most originalists agreeing with the accounts of that difference as stated by Solum, Barnett, and Wurman. But that distinction makes the fixation thesis completely irrelevant to constitutional litigation as the hypothetical below demonstrates.
Imagine a new 28th Amendment. If you think that the ERA is already the 28th Amendment, substitute 29th each time I refer below to the 28th Amendment. Whatever its number, it reads as follows:
"Congress Shall Make No Law Abridging the Right to Vote"
If this amendment were ratified today, we could reasonably say that its original meaning suggests that the right to vote is extremely important and fundamental to our country and system of government. Imagine this Amendment was passed by 2/3 of each house of Congress and ratified by the bare minimum of states after a lengthy and public process.
One hundred years from now, Georgia passes a law requiring all voters in the state to show their newly invented identity thumbs before they can vote. An identity thumb is a small device given to all people born in America (other than children of diplomats and invaders) shortly after birth. It is implanted into the thumb and serves as a permanent marker of identification and citizenship.
Of course, sometimes the thumb is implanted incorrectly or forgotten altogether so the system is far from foolproof. A lawsuit is filed challenging Georgia's thumb identity requirement under the 28th Amendment. There is ample precedent on the subject that "no" does not and cannot mean "no," and that restrictions that make voting harder must be grounded in "compelling governmental interests."
The Fixation Thesis teaches us that the original meaning of the text is binding when it is ascertainable but the expectations of the people at the time can be discarded if based on facts that are no longer true or believed by modern judges to no longer be true.
How would judges apply the Fixation Thesis to this 28th Amendment problem? The amendment was passed long before anyone had heard of identity thumbs. Was the meaning of the 28th Amendment fixed in a way that could help us decide this case? The answer is obviously no, just as inquiring what our Founding Generation thought about defamation and the internet would be an absurd line of inquiry (even using loose analogical reasoning).
But wait, it turns out that the generation that ratified the 28th Amendment did have discussions about giving everyone some form of universal identification. In fact, we have records of people before, during, and after ratification debating the pros and cons of that exact question (although of course none involved the permanent, painless, and 98% effective identity thumb).
It turns out that people 100 years before this case were divided on the question. Some pro-universal identity card folks argued that universal ID would lead to a more egalitarian system of voting, while others were worried the card could be forged and lead to fraud, while still others didn't believe in universal suffrage at all. There was obviously no discussion of the type of technology that exists now (100 years later).
It should be obvious that the Fixation Thesis is no help at all. There is no original meaning that can helpfully shed light on the benefits and detriments of this new technology. There is no "fixed meaning" on the question because, as Barnett, Solum, Wurman, and most originalists seem to accept, applications, not meanings, drive constitutional litigation, and we have no idea how people living 100 years ago would have applied the 28th Amendment to technology they could not have anticipated.
But wait again!! Let's say that around the same time that our contemporaries are considering the 28th Amendment, they are also considering implants as identity markers. It's hardly far-fetched. We already use retinal scans and face recognition to verify identity, and Elon Musk's Neuralink is implanting more intrusive devices than the identity thumb. So imagine that in the actual present Congress considers a bill that would require the use of some kind of microchip implant as an identity marker but that the proposed legislation is overwhelmingly rejected because the people don't want government to be in the business of permanently installing small microchips in people's bodies.
Judges 100 years later are not bound by that specific expectation under original meaning originalism because over the ensuing 100 years the government developed small chips that many people wanted in their bodies such that the "no chip in body" mindset has changed. According to originalists, now judges can discard the known expected application and "do originalism" by noting that society has changed on the issue of "body chips" and what was once rejected as unconstitutional is now constitutional.
What I just described is how constitutional law is actually practiced by judges, and it is indistinguishable from living constitutionalism or other forms of judicial pluralism.
The twin concepts that the original meaning of the text is fixed at ratification and that that meaning is binding on judges simply do not describe anything tethered to reality that helps judges decide cases. Once judges are allowed to set aside known expected applications of the constitutional text because of societal changes, there is nothing left of originalism except for its use as a symbol of conservative and/or libertarian values.
Have guns changed enough to allow their regulation even if the Second Amendment applies outside the militia context?
Can Congress regulate social media sites because they are more like traditional sidewalks than private businesses?
Does the 14th Amendment require color-blindness despite a century of segregation and red-lining that the people who ratified the 14th Amendment could not have anticipated?
How do we apply the commerce power to an interconnected, international economic world unknown to the Founding Fathers?
What is the original meaning of "cruel and unusual punishment?" How do we define cruel?
I could go on and on and on.
Today's originalists believe that the original meaning of the constitutional text is fixed at ratification but that how judges apply that meaning properly changes over time. Of course, they believe that only about open-ended text like "equal protection," "due process, and "establishment,” not clear text such as the requirement of two Senators from every state or the rule that the President can only serve two terms.
But the "fixed" meaning of hopelessly imprecise text is an incoherent concept. There is no "fixed" meaning to "equal protection," "due process," or "unreasonable." There are only applications, and under originalist theory, judges are not bound by those original applications if "beliefs about facts" change. Given the age of our Constitution and the Reconstruction Amendments, enough time has gone by that judges in any case can point to changed facts allowing them to ignore the known original applications of imprecise constitutional text.
The Fixation Thesis has led to hundreds of law review articles and essays. Originalists across the land swear by it.
And it is a completely useless thesis that tells judges nothing important about how to decide constitutional law cases. It is just a dangerous, political camouflage for the imposition by judges of their own personal and quite modern values.