40 Pages Posted: 17 Nov 2011 Last revised: 16 Feb 2012
Date Written: November 14, 2011
This Article, which was written for a symposium on Jack Balkin's book, Living Originalism, criticizes the principal method that is used to argue that originalism allows modern interpreters significant discretion. The key move in this argument occurs when an interpreter claims that possibly abstract constitutional language has an abstract meaning. Clauses with abstract meanings allow interpreters to exercise significant discretion over their content. Consequently, interpreters can claim to find modern values in these clauses and still argue that that they are respecting the original meaning.
We examine this interpretive move and argue that two well-known theorists who employ it, Ronald Dworkin and Jack Balkin, commit a fallacy – what we term 'the abstract meaning fallacy.' This fallacy occurs when interpreters conclude that possibly abstract language has an abstract meaning without sufficiently considering the alternative possibilities. While possibly abstract language might turn out to have an abstract meaning, this result does not exhaust the interpretive possibilities. As we show with examples, the better interpretation of such language considered in context might turn out to have either a concrete meaning or a general meaning that is not abstract.
Ronald Dworkin is not himself an originalist, but he argues that an originalist methodology should lead to abstract interpretations. Unfortunately, Dworkin consistently assumes an abstract meaning without closely examining other possible historical meanings.
Jack Balkin makes a variety of more complex arguments, but also commits the abstract meaning fallacy. Balkin attempts to support his preference for abstract interpretations by claiming that many constitutional provisions take the form of open-ended principles that allow modern interpreters significant discretion. But Balkin presents little evidence that the Framers embraced such a distinctive method of writing and interpreting a constitution. Balkin also claims that abstract constitutional provisions are necessary to enable politics by allowing political processes to give content to the values that the abstract provisions leave open. But provisions as abstract as he prefers are not necessary to politics, because non-abstract provisions can also allow a significant political sphere. Further, Balkin attempts to support his approach with normative arguments. But Balkin’s normative vision does not comport with that of the actual Constitution and, in our view, is normatively unattractive. Thus, Balkin is no more successful than Dworkin in showing that originalism can be collapsed into living constitutionalism.
Keywords: constitutional law, interpretation, originalism, living constitutionalism
Suggested Citation: Suggested Citation
McGinnis, John O. and Rappaport, Michael B., The Abstract Meaning Fallacy (November 14, 2011). University of Illinois Law Review, Forthcoming; Northwestern Public Law Research Paper No. 11-67; San Diego Legal Studies Paper No. 12-081. Available at SSRN: https://ssrn.com/abstract=1959668
By Brian Leiter
By Ralf Poscher