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Justice Ginsburg and the Abstract Meaning Fallacy

As Mike Ramsey noted, the Wall Street Journal has reported on Justice Ginsburg’s remarks on the Framers’ plans for the Constitution:

“The founders of our country were great men with a vision,” Justice Ginsburg said. “They were held back from realizing their idea by the times in which they lived.

But, she added, their notion was that society would evolve and that the clauses of the Constitution would grow with society.

“The Constitution would always be in tune with society that the law is meant to serve.”

This notion that the Framers of the Constitution  intended the Constitution to evolve over time is one of the basic principles of many nonoriginalists and of some (liberal) originalists.  It has, however, very little support.

One version of this approach interprets the language of many constitutional provisions to be abstract.  Under this interpretation, future interpreters can apply these abstract provisions differently over time.  In this article, John McGinnis and I described this approach (followed by nonoriginalist Ronald Dworkin and originalist Jack Balkin) as often committing the abstract meaning fallacy.  We defined the fallacy as occurring “when interpreters conclude that possibly abstract language has an abstract meaning without sufficiently considering the alternative possibilities.”

Ginsburg here commits a close cousin of the fallacy, what might be called the “Framers intent — evolving constitution fallacy.”   She assumes, without justification, that the Framers intended the Constitution to evolve.

There is very little, if any, justification for the blanket assumption that the Framers intended the Constitution to evolve.  The main justification is language from McCulloch v. Maryland, which I believe is misinterpreted to support an evolving constitution.  Yet, these fallacies continue to be repeated, as with Ginsburg, perhaps because they allow those who favor a living constitution to defend against the criticism that they are not being faithful to the Constitution.

Reader Discussion

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on August 10, 2012 at 07:14:54 am

Of course they intended the Constitution to evolve. Why else did they include Article V? The important point is they intended it to evolve by *formal amendment*, not judges being suborned into claiming it suddenly had always meant something new.

That's the appropriate response to this evolving Constitution nonsense: "Yes, it was supposed to evolve. BY AMENDMENT."

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Brett Bellmore
on August 10, 2012 at 08:56:59 am

Whenever I am presented with the question "don't you think the Constitution needs to change over time to meet the changing needs of society?", my standard response is "You are asking the wrong question. Of Course the Constitution must be malleable and must adapt. But the key question is, who has the authority to make those necessary changes? And the Constitution answers that Question -- it is the PEOPLE, through the Amendment process, who reserved to themselves the exclusive authority to decide just what changes to the Constitution are necessary.

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Daniel Artz

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.