The Abstract Meaning Fallacy

rights provisions are valuable even if their contours are not fully determined in advance. They shape the way that political actors understand and articulate the values inherent in the political system; they shape the beliefs of political actors about what they can and cannot do, what they are fighting for and what they are fighting against. But rights are less valuable, indeed not really valuable at all as precommitments, if their meaning is indeterminate. A comparison of two famous cases—Home Building & Loan Ass’n v. Blaisdell and District of Columbia v. Heller—powerfully illustrates this point. In Blaisdell, the Court interpreted the contracts clause precisely as Balkin would have us do, as an abstract principle about the value of protecting contract obligations rather than as a requirement not to violate them. The Court, in fact, specifically rejected the argument that the clause was “to be read with literal exactness like a mathematical formula.” It expressly endorsed Balkin’s view that constitutional principles so abstractly defined may be read radically differently from one generation to the next: If by the statement that what the Constitution meant at the time of its adoption it means [today], it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. Finally, the Court embraced the notion that the values referenced by a principle construed abstractly should be balanced against other considerations, in this case the perceived need to solve a foreclosure crisis. The result of such an approach was to gut the contract clause, eliminating its precommitment against impairing the obligations of creditors during a time of economic crisis—precisely the time that precommitment was most valuable. And the contract clause has never recovered to impose substantial limitations on state actions to reduce preexisting obligations. In contrast, the Heller Court showed how interpreting constitutional rights as fixed guarantees rather than abstractions provided far greater protections to the right at issue. In Heller, the Court held that the Second Amendment’s right to keep and bear arms guaranteed the right to keep a handgun in one’s home for self-defense. The Court expressly rejected the reasoning in Justice Breyer’s dissent, which would have treated the right as an abstract principle to be balanced against other 127. BALKIN, supra note 2, at 25; Jack M. Balkin, Framework Originalism and the Living Constitution, 103 NW. U. L. REV. 549, 555 (2009). 128. Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934). 129. District of Columbia v. Heller, 554 U.S. 570 (2008). 130. See Blaisdell, 290 U.S. at 443–44, 447. 131. Id. at 428. 132. Id. at 442–43. 133. Heller, 554 U.S. at 635. RAPPAPORT.DOCX (DO NOT DELETE) 4/24/2012 1:05 PM No. 3] THE ABSTRACT MEANING FALLACY 769 considerations like the District of Columbia’s perception of the effect of gun ownership on public safety. In his opinion for the Court, Justice Scalia repudiates this view and with it the idea that rights interpreted as abstract principles are as valuable as those interpreted with the scope they were framed to have: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Comparing Blaisdell and Heller without understanding the historical context of the cases in fact understates the difference in effect between treating rights as abstractions and treating them as specific guarantees. In Blaisdell, the Court was interpreting a right that had been repeatedly enforced by the Court for more than a century of jurisprudence. In Heller, the Court was interpreting a right the Court had not previously enforced and indeed was arguably in tension with prior precedent. The difference in context underscores how much is lost by the process of abstraction. Understanding a right as a relatively clear precommitment can revive it, despite a century of neglect. Understanding one as an abstract principle can undermine it, even after a century of enforcement. The concern that an abstract Constitution would provide insufficient protection against the infirmities of ordinary politics is not some abstract fear but one that actually motivated the Framers of both the original Constitution and the Fourteenth Amendment. For instance, James Monroe wrote of his hope that the Constitution would protect liberty against the less favorable political climate that he expected sometime in the future: “The spirit of the times might secure the people of America [perhaps] for a great length of time against [oppression]; but fundamental principles form a check, even when the spirit of the times hath changed, indeed they retard and contro[l] it.” But we do not have to be content with general sentiments: key provisions of the Constitution were built around the fear of future politics. For instance, the Bill of Rights was a concession to the Antifederalists whose great anxiety was that federal politics would encroach on important traditional rights of citizens in the states. They were concerned 134. Id. at 682 (Breyer, J., dissenting). 135. Id. at 634–35. 136. For a discussion of the history of the contract clause before Blaisdell, see Douglas W. Kmiec & John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 HASTINGS CONST. L.Q. 525 (1987). 137. See United States v. Miller, 307 U.S. 174 (1939) (holding that the Second Amendment does not prohibit a firearms conviction). 138. James Monroe, Observations on the Constitution (May 25, 1788), available at http://teaching americanhistory.org/library/index.asp?document=1799. For discussion, see Gillman, supra note 97, at 198. 139. DONALD E. LIVELY, FORESHADOWS OF THE LAW: SUPREME COURT DISSENTS AND CONSTITUTIONAL DEVELOPMENT xv (1992). RAPPAPORT.DOCX (DO NOT DELETE) 4/24/2012 1:05 PM 770 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2012 that, despite the claim that the enumerated powers were limited, the federal government would seize on provisions like the necessary and proper clause to take these rights away and consolidate power into the national government. Put differently, the Antifederalists were concerned that ordinary politics would be dominated by a federal elite that would transform the republic into an oligarchy. Given this background, understanding rights as simply abstract principles that help articulate values and shape beliefs would have been woefully insufficient to protect against the Antifederalist’s fears. If ordinary politics could supply the meaning of abstract provisions, the Bill of Rights would not serve its function as a check on future federal majorities. Thus, Balkin’s preference for abstract meanings appears to be inconsistent with the historical bases of the Bill of Rights. The background of the Fourteenth Amendment is similar in this respect. The drafters of the Fourteenth Amendment had just fought a war against people who believed in slavery and hardly wanted to extend equal rights to African Americans. These drafters well understood that vagaries of ordinary politics might undermine the principles for which men died and for which the union had come to stand. They did not have to imagine such politics. They had seen that politics in the antebellum South in all its awfulness. They had also seen how southern states exercised influence at the national level. Thus, once again, an amendment that simply articulated values in a political climate that they had every reason to believe could radically change for the worse would be too feeble to withstand the challenges of degenerated politics. And they were right to be concerned, because a racial backlash did arise. Supporters of this backlash offered in Plessy v. Ferguson an understanding of equality that permitted the former Confederate states to require that blacks use separate accommodations if whites also were required to use separate accommodations. This understanding of equality is plausible if the Fourteenth Amendment is understood abstractly—divorced from the context which gave rise to it. It becomes much less plausible if the Fourteenth Amendment were understood to authorize the Civil Rights Act of 1866, which stated that citizens of different races should have the same rights. As John Harrison has pointed out, “separate but equal” does not provide whites and blacks with the same rights. Moreover, the context of the Fourteenth Amendment suggests that the purpose of the amendment was to eliminate caste legis140. See Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 TEX. L. REV. 331, 351 (2004). 141. See Bret Boyce, Heller, McDonald and Originalism, 2010 CARDOZO L. REV. DE NOVO 2 (noting the Fourteenth Amendment was passed against concern that southern states would deny rights to newly freed slaves). 142. See Plessy v. Ferguson, 163 U.S. 537, 550–51 (1896). 143. See John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1458 (1992). 144. Id. at 1458–59. RAPPAPORT.DOCX (DO NOT DELETE) 4/24/2012 1:05 PM No. 3] THE ABSTRACT MEANING FALLACY 771 lation. That purpose clarifies that separate but equal is not the correct understanding of equality in the Fourteenth Amendment, even if it is one possible interpretation of equality considered abstractly. Moreover, Jim Crow was not only consistent with the abstract quality Balkin assigns to rights, it provides a disturbing example of the manner in which social movements give meaning to those abstractions. The Ku Klux Klan was an important social organization that contributed to Jim Crow and its new notion of equality. When the Ku Klux Klan faded from respectability because of its violence, the more diffuse and intellectual “lost cause” movement pressed understandings of the Fourteenth Amendment that did no less damage to civil rights in the twentieth century. Sadly, other national movements also supported separate but equal. The Progressive movement was not unsympathetic to the social engineering of the kind the doctrine reflected. Thus, to recount the dismal constitutional history of Reconstruction is to see a possible result of Balkin’s theories. Like other progressives, Balkin may think that precommitments are mistakes, because he is enthusiastic about ordinary politics or because he thinks ordinary citizens, in the march of civilization, will make progressively better decisions. But these are substantive political positions—in fact, the substantive commitments that motivated early twentieth century progressives to advocate discarding a Constitution they believed imposed a straitjacket on societal development. Although Balkin’s position thus appears faithful to progressivism, that does not make it faithful to the Constitution’s original meaning. C. Supermajority Rules and Delegations to the Future Balkin also claims that the use of supermajority rules in the constitution-making process leads to provisions that delegate to the future. Balkin writes: Precisely because laws passed by a supermajority must appeal to a broad range of people, framers will sometimes use abstract and general language to paper over disagreements that would emerge if more specific language were chosen. In the alternative, constitu145. See, e.g., AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 162 (1998) (understanding the Fourteenth Amendment as an attempt to prevent restoration of racial caste). 146. See Edward L. Rubin, Passing Through the Door: Social Movement Literature and Legal Scholarship, 150 U. PA. L. REV. 1, 66–67 (2001) (conceding the dark side of social movements represented by the Ku Klux Klan). 147. The “lost cause” movement was an intellectual movement that promoted a historical view of the antebellum South and Reconstruction that justified segregation. See Michael Coblenz, Not for Entertainment Only: Fair Use and Fiction as Social Commentary, 16 UCLA ENT. L. REV. 265, 313–14 (2009). 148. See Richard A. Epstein, The Monopolistic Vices of Progressive Constitutionalism, 2004–2005 CATO SUP. CT. REV. 11, 32–33. RAPPAPORT.DOCX (DO NOT DELETE) 4/24/2012 1:05 PM 772 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2012 tional framers will remain silent about particular issues to avoid destroying a supermajority coalition. This Section argues, to the contrary, that supermajority rules are unlikely to lead to open-ended delegations. First, we maintain that citizens are risk averse concerning constitutional provisions, because so much is at stake. Thus, it is doubtful that they will create broad delegations about such matters. Instead, if the people cannot agree on a provision, they are more likely to leave such matters to the democratic process, where no decision will be entrenched against change. Second, we contend that the main provisions that are likely to pass under strict supermajority rules are those that are supported by a consensus of the people. Such provisions have existed in the past and would not require delegations to the future. Third, even if different groups were unable to agree on a precise provision, it would still not follow that they would delegate its meaning to future interpreters, because that would permit judges to choose a meaning that none of the groups would desire. Finally, if it does turn out that different groups cannot agree on a precise meaning, that does not suggest the language should be interpreted as a delegation. Instead, we argue that the language they enacted should be interpreted according to existing interpretive rules, which as discussed above did not appear to favor abstract meanings. First, supermajority rules are unlikely to lead to constitutional delegations to the future. The main problem is that citizens are risk averse when it comes to constitutional provisions, because a great deal is at stake in the choice of important entrenchments that cannot be easily repealed. Thus, embedding provisions that might lead to bad results as perceived by the Framing generation would have particularly large costs. Moreover, this risk aversion is likely to be expressed in the constitutional enactment process, because opponents of the proposed constitutional provision can play upon the fears of citizens in this regard. The Equal Rights Amendment (ERA) is a case in point. One of the reasons why the ERA failed to be enacted was that the broad language, combined with nonoriginalism interpretive methods at the time, caused 149. BALKIN, supra note 2, at 28. 150. To be clear, in this Subsection we are not arguing that it is logically impossible that citizens create delegations to the future in a constitution, just that supermajority rules do not encourage such delegations and that the risk aversion of citizens discourages it. 151. There are studies of risk aversion in finance, showing that an overwhelming majority of people are risk averse with financial investments. WILLIAM A. KLEIN & JOHN C. COFFEE, JR., BUSINESS ORGANIZATION AND FINANCE: LEGAL AND ECONOMIC PRINCIPLES 245–46 (9th ed. 2004). Balkin has provided no reason to believe they would feel otherwise in political investments, like a constitution. 152. Again there is an analogy to finance: the more equity is at risk, the more risk averse management will be. See Lawrence J. White, The S&L Debacle, 59 FORDHAM L. REV. S57, S60 (1991). 153. Mark Tushnet, The Warren Court As History: An Interpretation, in THE WARREN COURT IN HISTORICAL AND POLITICAL PERSPECTIVE 1, 17 (Mark Tushnet ed., 1993) (“[T]he justices who formed the core of the late Warren Court . . . found that they had been placed in a position where they had a fair amount of discretion to do what they believed right, and they believed that they were authorized, by virtue of their selection for that position, simply to do what they believed right.”). RAPPAPORT.DOCX (DO NOT DELETE) 4/24/2012 1:05 PM No. 3] THE ABSTRACT MEANING FALLACY 773 people to question what the amendment would cover. People were concerned that the amendment would be construed to require unisex bathrooms and women in combat, results that many found repugnant. Second, given these alternatives, what supermajority rules encourage is not broad delegations to the future, but determinate principles about which there is a broad consensus. If people are risk averse, then it is likely that any provisions that can pass through the supermajority process are those that are determinate and widely supported. Under this analysis, the only way that Balkin could contest the largely determinate character of a constitution would be if he could show that a consensus on a set of important provisions is impossible or unlikely. But it would be surprising if at any time there were not various provisions about which people agreed. These they would enshrine in the constitution. The Bill of Rights provides an excellent example of how widely accepted provisions can be enacted. To be sure, the Antifederalists demanded these provisions. But James Madison and the Federalist Congress eliminated the provisions that they deemed improper. As a result, the Bill of Rights was not about deeply contested matters. Rather, it represented rights that colonists had fought for and deemed the birth rights of British citizens. One measure of the consensus was the reaction of the Federalists to the initial Antifederalist proposal to put these rights in the Constitution. They did not object by disputing their importance or indeed by quibbling about their content. They argued instead that the rights were already implicitly protected against federal encroachment by the enumeration of powers and that including the Bill of Rights might undermine that protection. Third, let us assume, contrary to what we believe likely, that groups are not able to agree but still choose to enact an indeterminate constitutional provision. Even under these circumstances, Balkin’s argument is a nonsequitur, because these groups are unlikely to favor a broad delegation to the future. Let us assume group A wants to place principle A in the Constitution and group B wants to place principle B. Because they cannot agree, they enact an ambiguous or vague provision that does not clearly communicate either A or B. Even in this situation, these groups will not want the provision to be interpreted to mean principle C, where principle C is neither principle A nor principle B nor a compromise 154. See Suzanne Sangree, Title IX and the Contact Sports Exemption: Gender Stereotypes in a Civil Rights Statute, 32 CONN. L. REV. 381, 412 (2000). 155. See, e.g., CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 66, 77–86 (Helen E. Veit et al. eds., 1991). 156. See A.E. Dick Howard, Rights in Passage: English Liberties in Early America, in THE BILL OF RIGHTS AND THE STATES: THE COLONIAL AND REVOLUTIONARY ORIGINS OF AMERICAN LIBERTIES 3, 11 (Patrick T. Conley & John P. Kaminski eds., 1992). 157. See, e.g., Thomas B. McAffee, Restoring the Lost World of Classical Legal Thought: The Presumption in Favor of Liberty over Law and the Court over the Constitution, 75 U. CIN. L. REV. 1499, 1537 (2007) (noting Federalist fear that a bill of rights could endanger the Constitution’s structural protections for liberties). RAPPAPORT.DOCX (DO NOT DELETE) 4/24/2012 1:05 PM 774 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2012 among them. But a relatively open-ended delegation would permit the Court to choose such a principle C. To be concrete, let us assume that two groups disagreed on an important application of the contract clause. Group A wanted the clause only to be apply to retrospective applications, invalidating only encroachments on contractual terms already agreed upon. Group B wanted the clause to apply to prospective applications as well, constraining government’s power to regulate the terms parties could be put in contracts even in the future. In fact, it is possible that there was some ambiguity in the scope of the contracts clause as between these two applications. Justices Story and Marshall had a rare disagreement on whether its strictures should be applied prospectively. Justice Marshall thought the clause deprived states of the authority to impose restrictions on future contracts while Justice Story believed the clause prohibited interference only with past contracts. Even given this disagreement, it would be very odd if these two groups would want the clause to be interpreted as some abstract principle of the kind Balkin wants, which is subject to balancing against other considerations. That was indeed the kind of principle applied in Blaisdell: the result was a gutting of the clause even against retrospective applications. That would have equally annoyed groups A and B, because, as Justice Sutherland observed in Blaisdell, it would undermine the key purpose of the clause—to prevent the retrospective abrogation of debts by debt relief legislation—a principle both groups A and B agreed upon. Thus, rational, even if disagreeing, groups would want courts to choose in some way between principle A and principle B rather than endorse an open-ended delegation. Finally, if the enactors of a constitutional provision did, in fact, fail to agree on its meaning, that still does not mean that judges should view it as a delegation. As we have written elsewhere, constitutional provisions are enacted against a background of interpretive rules. The interpretive rules that the constitutional enactors deemed applicable to the Constitution determine the original meaning of the constitutional provision. Thus, even if the enactors could not agree on the meaning of a provision, judges would still be required to interpret the provisions based on the interpretive rules. Unless those rules required that judges consider the actual understandings of the differing factions, judges would be required to ignore those disagreements and instead consider the matters that the interpretive rules required, such as text, structure, and evident 158. See Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 354 (1827). 159. Id. (Marshall, C.J., dissenting) (“That the words of the clause in the constitution which we are considering, taken in their natural and obvious sense, admit of a prospective, as well as of a retrospective operation.”); id. at 231 (Story, J.) (noting that a contract is necessarily formed within the confines of the laws of the state, incorporating its requirements). 160. McGinnis & Rappaport, supra note 36, at 752–53. RAPPAPORT.DOCX (DO NOT DELETE) 4/24/2012 1:05 PM No. 3] THE ABSTRACT MEANING FALLACY 775 purpose. Thus, failures to agree on meanings would not necessarily lead to delegations to the future to decide on the meaning of provisions. Thus, we do not believe Balkin has shown that supermajority provisions for constitution making naturally lead to delegations to the future. Such delegations are inconsistent with risk aversion and would open proposed entrenchments to withering attack. There is an alternative when groups cannot agree: leave out controversial principles and entrench only consensus ones. Even in the rare instances where groups disagree and nevertheless would like a provision to be put in the Constitution, a delegation to the future would not represent a likely rational compromise because it would increase risks for everyone involved. IV. NORMATIVE ARGUMENTS Balkin also makes normative arguments for his view that constitutional provisions are often best interpreted as abstract principles providing substantial discretion to future interpreters. He argues that constitutional law must serve three functions as basic law, higher law, and our law. Moreover, Balkin claims that these three functions can be realized only through an interpretive methodology that favors interpreting constitutional provisions as abstract principles permitting delegation to the future. Like his argument from purpose and structure, his more expressly normative argument is designed to make more plausible his specific arguments that particular constitutional language should be interpreted as abstract delegations. Our response is similar to our argument as to purpose and structure. We maintain that Balkin’s normative arguments are not well-grounded in the Constitution and do not offer a normatively attractive position. His conception of the Constitution as higher law provides no reason to believe that this law would actually promote human welfare rather than being dependent on unpredictable social movements of the future. His conception of the Constitution as our law provides no reason to believe it would be the law of the people as a whole rather than the social movements that happen to be preferred by the unelected judiciary of the time. Instead of Balkin’s conception, we argue in favor of an alternative conception of higher law and our law that promotes human welfare but does not embrace abstract delegations. Under our conception, the Constitution is higher law because it is higher in quality than ordinary law and it is our law, because we Americans make it through the deliberate process of constitution making, either through the process by which it was originated or amended. Moreover, these descriptions of the Constitution as higher and our law come directly from the text, structure, and original understanding and do not depend on Balkinian concepts, like 161. BALKIN, supra note 2, at 59–73. 162. Id. RAPPAPORT.DOCX (DO NOT DELETE) 4/24/2012 1:05 PM 776 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2012 redemption, that are not explicit or implicit in American constitutional law. And unlike in Balkin’s framework, basic law, higher law, and our law are always identical—the determinate provisions of the Constitution as written.