There’s been an originalism flareup lately. Since the linked post went to press, John O. McGinnis and Michael B. Rappaport have posted their new article “The Abstract Meaning Fallacy.” Their article argues that progressive originalist methodology — such as Jack Balkin’s and that proposed (though not endorsed) by Ronald Dworkin — is too quick to infer from the seemingly abstract phrases in the Constitution that those phrases are actually abstract. Or, as they put it:
This fallacy occurs when interpreters conclude that possibly abstract language has an abstract meaning without sufficiently considering and weighing the alternative possibilities. While possibly abstract language might turn out to have an abstract meaning, this result does not exhaust the interpretive possibilities. Such language might turn out to have either a concrete or a general meaning that is not abstract.
Different scholars commit this fallacy in different ways – with some scholars too quickly reading constitutional language to have an abstract meaning and other scholars viewing the history in the same manner – but the error and the result remains the same: the Constitution’s original meaning is mistakenly interpreted to allow modern interpreters more discretion than it actually does.
What McGinnis and Rappaport (M&R) say is partly true. Progressive originalists want to show that the Constitution (even as originally understood) comports with their modern, liberal sensibilities. The best way to do that is to construe as many constitutional provisions as possible as calling for moral reasoning (i.e. reasoning from modern, liberal sensibilities).
But rightwing originalists like M&R want to show that the Constitution (even as originally understood) comports with their conservative, limited government sensibilities. The best way to do this is to construe as many constitutional provisions as possible as calling for reasoning about what the Framers expected (i.e. reasoning about the views of people who lived in an era when there was no such thing as the administrative state*).
I think Ronald Dworkin was the first progressive to point out — ingeniously — that the meaning of a directive is different from its expected application. This made space between the Framer’s expectations and the meaning of the Constitution, allowing progressives to pour in an alternative source of constitutional meaning more congenial to their sensibilities.
The progressive/conservative originalist dialectic has been forced to accommodate what Dworkin recognized (because what Dworkin recognized is manifestly correct). Progressives have sought to widen the gap between constitutional meaning and expected application by construing constitutional provisions abstractly — if a provision is abstract then it’s application is necessarily underdetermined by, could even conflict with, the expectations of those who wrote it. McGinnis and Rappaport’s intervention into the dialectic is designed to undermine this particular move (even stigmatizing it as a fallacy: “the abstract meaning fallacy”).
But, of course, as the progressives have sought to widen the gap opened by Dworkin between meaning and expected application, conservatives have sought to keep it as narrow as possible. What they do nowadays is they point to a bunch of expectations of the framers of constitutional provisions — a bunch of ways in which certain key players understood, in terms of examples, what they were doing — and they call those expectations evidence of semantic meaning as opposed to constituents of semantic meaning. M&R propose as an alternative to the abstract meaning fallacy an exemplification of this way of proceeding:
Professor Michael McConnell has argued that the original meaning of the Privileges or Immunities Clause protects basic rights that had been conferred for a long period by a wide number of states at the time of the Fourteenth Amendment. More specifically, McConnell claims that the Clause protects ―fundamental‖ rights that were recognized by ―all free governments and that had been enjoyed by citizens of the several states from the beginning of the Republic. Thus, under this interpretation, the Clause requires judges to make ―historical, not moral or philosophical judgments.
This interpretation involves a straightforward interpretation of the original meaning of the Clause. In the years before the adoption of the Fourteenth Amendment, Justice Bushrod Washington had written an extremely influential judicial opinion in Corfied v. Coryell on the Privileges and Immunities Clause of Article IV, which had defined privileges and immunities in the terms that McConnell’s interpretation employs. When the Fourteenth Amendment was being debated, many persons had asked what the privileges or immunities were, and a very common response was to quote Justice Washington’s description in Corfield. This evidence suggests that privileges and immunities were understood by people who were familiar with legal terms to have the meaning that Corfield has articulated. Hence, legally sophisticated people who were reading the Fourteenth Amendment at the time would have understood that one possible meaning of the term was the one that McConnell suggests.
This move — pointing to a set of expectations articulated by a favored jurist or political figure, and then citing those expectations as evidence of meaning — is the move by which conservative originalists seek to collapse the difference between original semantic meaning and original expected application. M&R introduce it as the next phase in the dialectic — where originalism needs to move — but in fact it is just the conservative alternative to the abstract meaning fallacy, what we should call the “concrete meaning fallacy.” It semanticizes expectations by reconstruing those expectations as evidence of how the semantic content of the provisions was understood.
The concrete meaning fallacy and the abstract meaning fallacy are two sides of the same coin; neither is the next dialectical step. Instead, the next phase in the dialectic is, as Hegel would have it, synthesis. The next step, that is, is to recognize that constitutional meaning — like all public meaning — lies in the contested zone between the concrete and the abstract. Competent speakers of English will understand a statement as more or less abstract at the same moment in time depending on the context of its utterance, and their own situation vis-a-vis the statement itself. Different competent speakers understand statements at different levels of abstraction, and the most sophisticated understand that this is so. The “concrete fallacy” and the “abstract fallacy” are thus not two incompatible ways of getting at meaning. Rather, they each capture an important part of the meaning of a public utterance.
Which of these meanings governs isn’t a settled question at the time of enactment, and, for the originalist, it does not become a settled question any further down the line. What happens in practice is that the meanings are contested politically (or, depending on the kind of statement, in some other way), and the whoever wins this contest has his favorite meaning win out. But his favored meaning isn’t the original meaning of the statement any more than the meaning that lost. Rather the abstract and the concrete were both possible meanings — “permissible meanings” — and that’s where originalist inquiry runs out.
* A complication is that neither side really reasons about the views of the Framers, so much as they tap into (or propound) different stylized stories about those views. Careful historical scholarship on the founding era is cited perfunctorily, typically to draw irresponsible inferences from it. (I’m reminded of this.)