Frederick Mark Gedicks (Brigham Young University – J. Reuben Clark Law School) has posted It's a Wonderful Originalism! Lawrence Solum and the Thesis of Immaculate Recovery (DPCE [Diritto Pubblico Comparato ed Europeo] Online 31:3 (Oct. 2017), 653-60) on SSRN. Here is the abstract:
Part of an online symposium on Professor Lawrence Solum's account of originalism, this essay criticizes Solum's implicit “thesis of immaculate recovery.” This thesis presupposes that constitutional meaning exists in the past as an object, and can be recovered in its pristine objective form, untouched by concerns of the present. The essay argues instead that the meaning produced by originalist method is neither immaculate nor even a recovery, and that present concerns are not obstacles to understanding the past, but the very ground of that understanding. It uses a classic American film, "It's a Wonderful Life," to illustrate the argument.
Although I do not agree with many of Gedicks's characterizations of my positions, I urge you to read this provocative essay.
For a very different take on the implications of Gadamerian hermeneutics for originalism, see Lawrence B. Solum, Originalism, Hermeneutics, and the Fixation Thesis, in The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation from Linguistics and Philosophy130-155 (Brian G. Slocum ed., Chicago: University of Chicago Press 2017).
