Why can’t they just say what they mean?

My father recently became interested in constitutional law. As a genuine, gun-toting liberal, he was particularly interested to read Scalia’s majority opinion and Stevens’ dissent in the Supreme Court’s 2008 Heller decision, [which established 2nd Amendment rights as individual rights and applied the ruling to all federal enclaves but not the states]. First he read Scalia’s opinion and found himself persuaded. Then he read Stevens’ dissent and thought his argument, too, was persuasive. His ultimate complaint fell against the Founders: “Why couldn’t they have just said what they mean?” This is a typical complaint against laws in general and the Constitution in particular. Wouldn’t life be simpler if these documents just said what they mean?

Maybe that’s asking too much. Keep in mind that the Constitution is two things at once: 1) our founding document and basic law, and 2) a political compact, the result of negotiations rooted in a particular historical context. Clarity and precision might be desirable for a constitution, but it can be anathema to political compacts. The Founders were trying to entice the separate states into a permanent political union with each other, a complex negotiation that required drawing in the disparate geographical regions, economies, social classes, races, ethnicities, cultures, and religions then present among the states.

As any negotiator can tell you, specificity can be essential to bringing agreement. The 3/5ths compromise on representation (a boon for the southern slavocracy) was balanced against the prohibition of the slave trade after 20 years (a boon for the anti-slavery faction north and south, as contemporaries thought that slavery would never survive through natural population increase). Specific constitutional provisions were needed to entice these two opposing factions into political union.

But sometimes specificity can be an obstacle to political compromise. One big sticking point during the constitutional convention and later during ratification was the philosophical disputes between the federalists and the anti-federalists on the nature and duties of government. Very briefly, Federalists like Hamilton thought that securing specific rights in the Constitution was unnecessary (since non-enumerated rights were still reserved to the people) and antithetical to the idea of a democratic government (since only under monarchies did people negotiate with their rulers to carve out liberties). Anti-Federalists like Jefferson and Madison were very concerned with securing an enumerated list of the people’s liberties that was as complete as politically possible in order to prevent tyrany of centralized government.

Short of solving this age-old philosophical debate in the few short years of negotiation, ratification, and initiation of the federal government (which is clearly impossible), how could the Framers entice these two sides into a political union? One answer seems to be the artful use of ambiguity. Agree to enumerate a brief Bill of Rights in the first Congress, but make the Bill brief and vague enough to be open to interpretation. After all, that’s why you went to the trouble of creating a judiciary based on common law in the first place. Like any good negotiator, when the Founders were faced with an intractable problem, they did their best to satisfy people’s deepest concerns, and then kicked the can down the road to let the judiciary sort things out as best they could in the future.

Let me conclude by saying this is a feature, not a defect, of our Constitution. A handful of rich, old, white men working in a short span of time cannot sufficiently answer every single constitutional question that will face a nation of any longevity. They can do the best possible given their cognitive, temporal, and political constraints, and then leave the task up to us to continue. That’s why they can’t just say what they mean. They don’t know exactly what they mean, and some things are best left ’till later.

Update: It’s nice to get some back-up from someone who’s actually an expert on conlaw. Here’s Justice John Paul Stevens’ take on political compromise, ambiguity, and the role of the judiciary from a great profile in the New Yorker:

[Stevens] recalled an incident involving an antitrust law: “I remember explaining one of the tricky problems in the statute to one of the members of the [House] committee. I got all through it, and he said, ‘Well, you know, let’s let the judges figure that one out.’ ”What that told [Stevens] was that “the legislature really works with the judges—contrary to the suggestion that the statute is a statute all by itself,” Stevens said. “There is an understanding that there are areas of interpretation that are going to have to be filled in later on, and the legislators rely on that. It’s part of the whole process. And you realize that they’re not totally separate branches of government—they’re working together.”

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This is a group blog. JSC5 currently writes from the US. JSC7 writes from behind the Great Firewall of China.

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