The Fixation Thesis: The Role of Historical Fact in Original Meaning

Part I begins by examining the role of the Fixation Thesis in contemporary originalist constitutional theory. The next step, in Part II, is to state the affirmative case for the Fixation Thesis. This is the heart of this Article and readers who are looking for the gist might limit themselves to the discussion here. Part III explores a variety of objections to the Fixation Thesis and clarifies the content of the thesis in light of the answers to these objections.

Several theoretical views that reject (or seem to reject) the Fixation Thesis are examined in Part IV. Part V applies the Fixation Thesis to three examples, “domestic violence,” “cruel and unusual punishment,” and “privileges or immunities of citizens of the United States.” The conclusion assesses the landscape of constitutional theory in light of the arguments presented.