ADVERTISEMENT



Google       

Home -> Law Blog Directory -> Legal Commentary Blogs -> Prawfs

OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Bankruptcy (866) 635-1838
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402

Bookmark

Legal Commentary

: Prawfs

The Circularity of the Fixation Thesis

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

ADVERTISEMENTS
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.

Full post as published by Prawfs on February 11, 2010 (boomark / email).

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.
Related Searches

























































































































US Law
#1 Online Legal Resource













Your Blog Subscriptions
Subscribe to blogs

10,000+ Law Job Listings
Lawyer . Police . Paralegal . Etc
Earn a law-related degree
Are you the author of this blog? Adding USLaw.com to your Blogroll increases relevance. You qualify to display a USLaw Network badge.
Suggest changes to this blog's description or nominate another for inclusion. Register for updates.


Practice Area
Zip Code:

Contact a Lawyer Now!






0.0147 secs (new cache)