Does the fact that the Constitution is law tell us anything about the proper method of interpreting it or in any way constrain the sorts of interpretations that we might make? The assumption underlying this question is that if the Constitution is law, and therefore must adhere to the ideal of the Rule of Law, some interpretive theories of the Constitution might thereby be foreclosed. In particular, Professor Alexander\u27s essay suggests that one type of theory, a  perfectionist theory,  is inconsistent with the Constitution understood in this way. Let me quote a particularly interesting passage in his essay, in which he makes this point as part of an argument for a  hard law  theory of the Constitution

Balkin, Jack M.

English

University of Minnesota Law School

University of Minnesota Law SchoolScholarship RepositoryConstitutional Commentary1989The Rule of Law as a Source of ConstitutionalChange.Jack M. BalkinFollow this and additional works at: https://scholarship.law.umn.edu/concommPart of the Law CommonsThis Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in ConstitutionalCommentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact lenzx009@umn.edu.Recommended CitationBalkin, Jack M., "The Rule of Law as a Source of Constitutional Change." (1989). Constitutional Commentary. 428.https://scholarship.law.umn.edu/concomm/428THE RULE OF LAW AS A SOURCE OF CONSTITUTIONAL CHANGE J.M Balkin* Does the fact that the Constitution is law tell us anything about the proper method of interpreting it or in any way constrain the sorts of interpretations that we might make? The assumption underlying this question is that if the Constitution is law, and there-fore must adhere to the ideal of the Rule of Law, some interpretive theories of the Constitution might thereby be foreclosed. In partic-ular, Professor Alexander's essay suggests that one type of theory, a "perfectionist theory," is inconsistent with the Constitution under-stood in this way. Let me quote a particularly interesting passage in his essay, in which he makes this point as part of an argument for a "hard law" theory of the Constitution: [L]aw that is "interpreted" so that it is always just, good, and wise-perfect-in the eyes of the interpreter fails to fulfill the moral role that makes law valuable. That role is to decide and settle, at least temporarily, what is just, good, and right, even if the decision is viewed by some as incorrect. . . . In other words, law cannot fulfill the moral function signified by the notion of "a society of laws, not of men," if its interpretive methodology leaves it unsettled to the extent that political and moral debates remain unsettled. The liberal principle of the Rule of Law requires that law be predictable, nonretroactive, and equally applicable to all citizens. It is precisely because of these characteristics that it qualifies as the Rule of Law and not of persons. These principles are deeply tied to the liberal belief that a person's freedoms should not be subjected to the arbitrary will of another; only by postulating an impersonal, equally applicable set of norms can we achieve this goal of liberal social theory. Nevertheless, the argument continues, the very qualities that make possible the Rule of Law-predictability, nonretroactivity, and quality of application-also create the possibility that the estab-lished law will be unjust in the view of some. The fixed quality of law that creates the possibility of a Rule of Law also creates the possibility that the law will be fixed in an unjust manner. If the * Visiting Associate Professor of Law, University of Texas; Associate Professor of Law, University of Missouri-Kansas City. 21 22 CONSTITUTIONAL COMMENTARY [Vol. 6:21 Constitution is "hard law" of this nature, the Constitution must contain within itself the possibility of being unjust. Hence, one can-not argue that the Constitution enforces a right simply because it is more just or comports with a natural law theory of rights. For if it were always possible to argue in this way, then the Constitution could not function as law in the sense of a fixed set of rules applica-ble to all citizens. I would like to respond to this argument not by disputing its premises but by taking its logic one step further. The Rule of Law requires not only that laws apply to citizens, but that laws must be applied. Application requires adjudication, and the Rule of Law requires a statement of reasons for decision to demonstrate the con-nection between the decision and the existing body of law. Thus, the Rule of Law requires continual reading and rereading of the materials of the law in differing factual contexts in order for judges to decide cases. As judges decide cases, their readings become part of the corpus of the law, which then is read over and over again, and so forth. The result is that the Rule of Law creates an ever increasing mass of readings and rereadings of a potentially ever-in-creasing amount of authoritative materials.' This institutional feature of the Rule of Law poses an interest-ing analogy to the "hard law" argument given above. Just as inher-ent in the possibility of a fixed law is the possibility of a fixed law that is unjust, inherent in the possibility of reading is the possibility of misreading.2 The authoritative materials of the law can become contaminated by "incorrect" readings (note that I do not yet define this word) which will then themselves become part of the authorita-tive materials of the law through the principle of stare decisis. This poisoning of the authoritative materials increases as "incorrect" readings spawn other "incorrect" readings, which are worked into the body of authoritative materials, and so on. As a consequence, the law may travel far from the "correct" reading, whatever that may have been. Put another way, the Rule of Law requires that it 1. There are also nonauthoritative readings; for example, the interpretations of liti-gants, historians, and legal commentators (and even of dissenting judges) that also grow cu-mulatively over time. I call these readings nonauthoritative not because they differ from those of judges (for they may not differ at all), but simply because they are not entitle to stare decisis effect. These nonauthoritative readings may influence judges and other legal deci-sionmakers with the result that some aspects of these readings may become imported into the body of authoritative materials. Or, these readings may exist in tandem with the authorita-tive readings for years, influencing and being developed by successive generations of litigants, historians, and legal commentators until they eventually influence the authoritative readings of judges. 2. See J. CULLER, ON DECONSTRUCTION: THEORY AND CRITICISM AFTER STRUC· TURALISM 176 (1982); J. 0ERRIDA, MARGINS Of PHILOSOPHY 315-17 (A. Bass trans. 1982). 1989] SYMPOSIUM 23 be possible that a misreading-say of the privileges and immunities clause in The Slaughterhouse Cases J-could become fixed into the law by subsequent readings. The cumulative effect of readings and the possibility of misreadings at every step of the process, combined with the principle of stare decisis, creates the possibility that the law will experience greater and greater divergence from what anyone would have though a priori that the law required. Constitutional decisionmaking, then, is like the party game where each guest whis-pers a message into the next person's ear, and finally the first and last incarnations of the message are compared. If the Constitution is indeed "hard" law, it must contain its own possibilities of cumu-lative misunderstanding, possibilities that, as I have just argued, are endemic to the Rule of Law. The picture of adjudication that I have just presented has a further, and still more disturbing consequence: The processes of adjudication guarantee that what we do when we "interpret the Constitution" will have surprisingly little to do with the text itself. This point is not really so surprising when we consider what we actually do when we decide what an appropriate interpretation of the Constitution is. When a student takes the basic course in con-stitutional law, normally the first assignment in the syllabus is to read the text of the Constitution itself. However, once the student has read the actual text of the Constitution, she very rarely ever refers to it again. Instead, she concerns herself not with her own reading of the Constitution, but with the successive readings that others-lawyers, judges, and scholars-have made of the text. At the risk of sounding obvious, constitutional law textbooks are fat, and grow fatter every year, not because the text of the Constitution is getting longer, but because the readings of the Constitution-the readings that we actually use to determine what the Constitution itself means-are growing in size. Too often we talk as if what we are interpreting when we inter-pret the Constitution is the text of the document, pure and simple. But no one believes that when we interpret the Constitution we are supposed to look at the text of the Constitution really, really hard and that somehow the answers will pop out at us. Merely to state this vision of interpretation is to demonstrate its unreality. What is surprising, however, is that natural law theorists are prone to use this type of language just as much as positivists. From reading de-scriptions of what the former theories entail, you might gather that somehow the natural law theorists diligently look away from the 3. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872). 24 CONSTITUTIONAL COMMENTARY [Vol. 6:21 text and discover some values outside the Constitution that are nev-ertheless to be enshrined within it. Of course, neither paradigm has much to do with the actual process of constitutional argument. For example, consider the fol-lowing three questions that might come before the Supreme Court in the next few years: I. May a state provide strict liability for libels of private figures involving a matter of private concern, and may the state place the burden of showing truth as a defense upon the defendant in such cases? 2. Are tuition vouchers for parochial schools constitutional if the state cre-ates a system whereby the voucher can be used to pay for either public or private education? 3. May the FCC ban the broadcast of racist speech if such speech is broad-cast into the home at a time when impressionable children may hear it without parental supervision? No one, I think, seriously believes that the answers to these questions will be determined by reading the text of the first amend-ment over and over again until the correct answers hit us. Nor does anyone think that these questions will be answered by an ad hoc inquiry into moral values divorced from previous interpretations of the first amendment. Rather, the very possibility of these kinds of questions has been created by previous readings of readings of the first amendment. Dun & Bradstreet v. Greenmoss Builders4 and Heppss create the framework for understanding the issues in the first example, even as these readings depend upon New York Times v. Sullivan,6 which in tum depends upon still earlier readings. Suc-cessive readings of the Constitution have added new vocabulary, concepts, and principles to the corpus of materials that we use to understand what the Constitution requires. The process of adjudi-cation is itself a process of add-judication, of addition and supple-mentation. Statutory construction of the Constitution is precisely that-construction; by continuous readings and rereadings of the in-creasing body of materials we create the framework by which suc-cessive constitutional questions are posed, articulated, understood, and answered. I do not mean to suggest that judges cannot overrule previous precedents, or that previous readings ineluctably determine the sub-sequent direction of the law. Rather, my point is that the context of decision of a case is shaped by previous readings even if the subse-quent reading is a denial of the previous one, just as an adolescent is 4. 472 u.s. 749 (1985). 5. Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986). 6. 376 u.s. 254 (1964). 1989] SYMPOSIUM 25 shaped by her parents' attitudes even as she consciously rejects them. If adjudication is addition and construal is construction, suc-cessive readers are adding something to the body of materials. They are adding principles, policies, theories, distinctions, syntheses, vo-cabulary, and historical evidence. (We must always remember that history is itself a text that is not simply given but must be inter-preted just like any other text.) In short, successive readers of the text provide later readers with a smorgasbord of conflicting inter-pretations in which we will find the basis for our own interpretation, an interpretation which will be folded into the existing body just as a chef folds an ingredient into a recipe. 1 If the picture of adjudication I have proposed is correct, then the Rule of Law does not merely limit the types of interpretations that the Constitution may someday come to have. Rather, the Rule of Law actually creates the possibility that our understandings of the Constitution will grow and develop-will in fact change in the very way that the "hard law" argument given above suggests that they should not. s I have left one unfinished piece of business. In my earlier argu-ments, I deliberately refused to explain what a "correct" reading of earlier readings was, noting merely that the Rule of Law guaranteed the possibility that incorrect readings could be enshrined in the de-veloping mass of materials. I reserved discussion of this issue for two reasons. First, I do not think that the above arguments commit us to the view that there is a unique "correct" reading of the Consti-tution at any given time, although I freely concede that there always are and always have been many incorrect readings. But second, and more importantly, I would now like to argue that the Rule of Law actually guarantees that the standards of correct interpretation will change over time. Suppose that we granted that the present readings of the com-7. The doctrinal concepts and distinctions that become part of succeeding cases may spring from the judge's mind as she grapples with the case, or may be suggested by the briefs of litigants before her or even by the writings of legal commentators. The point is that suc-ceeding generations of legal readers collectively build intellectual frameworks for understand-ing how constitutional issues are to be resolved. These interpretations make law in the most essential sense; not only do they affect rights and responsibilities, but they help frame the terms of later constitutional debate. We could avoid the conclusion that later readers are really adding things to the Constitution only ir" we were to claim that the doctrinal and intel-lectual framework of later readings was somehow always imminent in the original text of the Constitution. However, this would commit us to an untenable set of metaphysical beliefs. 8. In fact, these conclusions are unavoidable if one takes seriously the positivist em-phasis of the "hard law" view. For, as any good positivist will tell you, judges are agents of the state, and always make law as they interpret it. I would merely add that judges not only make law, but they also recreate it through their various readings and rereadings. 26 CONSTITUTIONAL COMMENTARY [Vol. 6:21 merce clause are not "correct," because they are inconsistent with the much narrower scope of federal regulatory power that was one of the compromises necessary to achieve ratification of the Consti-tution. Finding ourselves faced with a series of incorrect interpreta-tions that have, nevertheless, become imbedded in constitutional doctrine and constitutional theory, what are we to do? I do not mean to suggest that stare decisis prevents us from rejecting these interpretations, for that is mere bootstrapping. I do think, however, that the fact that they are not "correct" readings in the original sense is not by itself a sufficient reason to reject them. My argument is that the meaning of what is a "correct" reading has itself been altered by the process of adjudication. How is such a result possible? Suppose that we are given two doctrinal areas of constitutional law, both of which are the result of a successive entrenchment of "incorrect" readings. If both are "in-correct," we have a number of alternatives. First, we can admit that the principle of stare decisis and the requirements of the Rule of Law-predictability, nonretroactivity, and equality of application-have forced us to accept both sets of readings as authoritative, even if not "correct" in the sense described earlier. We thus capitulate to the bootstrapping problem discussed earlier. In a sense, by privileg-ing the later readings over the earlier ones, we violate the Rule of Law in order to preserve it. Second, we can hold fast to our original principles, and over-turn all of the incorrect readings, regardless of the consequences for settled expectations. Here too, we violate the Rule of Law in order to preserve it, albeit in precisely the opposite manner, by privileging the earlier readings over the later ones. Both alternatives are equally unpalatable to most constitu-tional scholars. In some cases, as in the modern commerce clause cases, Brown v. Board of Education,9 and Bolling v. Sharpe, 10 we simply cannot go back to earlier interpretations that might have had a superior pedigree. Nevertheless, we would be equally loath to commit ourselves in advance to accepting the present state of con-stitutional law as an unchangeable orthodoxy. If we think succes-sive interpretations of article II have given the executive too much power in foreign affairs, we would not simply want to surrender our ability to return to a more appropriate balance of powers. More-over, such an approach would have, at various times, preserved in-famous cases like Dred Scott 11 or Plessy v. Fergus0n.12 9. 347 u.s. 483 (1954). 10. 347 u.s. 497 (1954). II. Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856). 1989] SYMPOSIUM 27 A third alternative, and I think the alternative that most con-stitutional scholars today would choose, would be to argue that we should preserve and even extent some "misinterpretations," but that no such deference should be given to others. We might retain the present understanding of the commerce clause while keeping alive the possibility that we might someday return to an earlier un-derstanding of (for example) the eleventh amendment. Note how-ever, that if we adopt this approach, the original standards of "correctness" cannot determine which misinterpretations to accept and which to reject. For, by hypothesis, all such interpretations are misinterpretations. Thus, we must develop a revised theory of cor-rect interpretation that differs from the original theory in that it allows us to choose between misinterpretations. The fact that stan-dards of correct interpretation have changed, however, does not mean that we are left to our own devices with no guidance whatso-ever. There are already rich sources of moral and political princi-ples to be garnered from the existing readings of the Constitution. What constitutes a correct interpretation of the Constitution will then become the result of moral and political debate within the framework of the constitutional tradition itself, a tradition that de-velops even as one finds oneself within it and living through it. Thus, I return to the question I originally began with: Does the fact that the Constitution is law consistent with the principle of the Rule of Law tell us anything about how the Constitution should be interpreted? My conclusion is precisely the opposite of the an-swer one would expect: The Rule of Law requires not only that constitutional tradition-the set of readings and readings of read-ings of the Constitution-will grow and develop, but that our stan-dards of what constitutes a correct interpretation of the Constitution will also change and develop over time. The Rule of Law, which seemed at first to stand as a bulwark against the notion of an evolving Constitution, in fact creates the very possibility of its existence. 12. 163 u.s. 537 (1896). 

The Rule of Law as a Source of Constitutional Change.

Part of a symposium on "the Constitution as
hard law" at a meeting of the Association of American Law Schools in Miami

University of Minnesota Digital Conservancy

THE RULE OF LAW AS A SOURCE OF 
CONSTITUTIONAL CHANGE 
J.M Balkin* 
Does the fact that the Constitution is law tell us anything 
about the proper method of interpreting it or in any way constrain 
the sorts of interpretations that we might make? The assumption 
underlying this question is that if the Constitution is law, and there-
fore must adhere to the ideal of the Rule of Law, some interpretive 
theories of the Constitution might thereby be foreclosed. In partic-
ular, Professor Alexander's essay suggests that one type of theory, a 
"perfectionist theory," is inconsistent with the Constitution under-
stood in this way. Let me quote a particularly interesting passage in 
his essay, in which he makes this point as part of an argument for a 
"hard law" theory of the Constitution: 
[L]aw that is "interpreted" so that it is always just, good, and wise-perfect-in the 
eyes of the interpreter fails to fulfill the moral role that makes law valuable. That 
role is to decide and settle, at least temporarily, what is just, good, and right, even if 
the decision is viewed by some as incorrect. . . . In other words, law cannot fulfill 
the moral function signified by the notion of "a society of laws, not of men," if its 
interpretive methodology leaves it unsettled to the extent that political and moral 
debates remain unsettled. 
The liberal principle of the Rule of Law requires that law be 
predictable, nonretroactive, and equally applicable to all citizens. It 
is precisely because of these characteristics that it qualifies as the 
Rule of Law and not of persons. These principles are deeply tied to 
the liberal belief that a person's freedoms should not be subjected to 
the arbitrary will of another; only by postulating an impersonal, 
equally applicable set of norms can we achieve this goal of liberal 
social theory. 
Nevertheless, the argument continues, the very qualities that 
make possible the Rule of Law-predictability, nonretroactivity, 
and quality of application-also create the possibility that the estab-
lished law will be unjust in the view of some. The fixed quality of 
law that creates the possibility of a Rule of Law also creates the 
possibility that the law will be fixed in an unjust manner. If the 
* Visiting Associate Professor of Law, University of Texas; Associate Professor of 
Law, University of Missouri-Kansas City. 
21 
22 CONSTITUTIONAL COMMENTARY [Vol. 6:21 
Constitution is "hard law" of this nature, the Constitution must 
contain within itself the possibility of being unjust. Hence, one can-
not argue that the Constitution enforces a right simply because it is 
more just or comports with a natural law theory of rights. For if it 
were always possible to argue in this way, then the Constitution 
could not function as law in the sense of a fixed set of rules applica-
ble to all citizens. 
I would like to respond to this argument not by disputing its 
premises but by taking its logic one step further. The Rule of Law 
requires not only that laws apply to citizens, but that laws must be 
applied. Application requires adjudication, and the Rule of Law 
requires a statement of reasons for decision to demonstrate the con-
nection between the decision and the existing body of law. Thus, 
the Rule of Law requires continual reading and rereading of the 
materials of the law in differing factual contexts in order for judges 
to decide cases. As judges decide cases, their readings become part 
of the corpus of the law, which then is read over and over again, 
and so forth. The result is that the Rule of Law creates an ever 
increasing mass of readings and rereadings of a potentially ever-in-
creasing amount of authoritative materials.' 
This institutional feature of the Rule of Law poses an interest-
ing analogy to the "hard law" argument given above. Just as inher-
ent in the possibility of a fixed law is the possibility of a fixed law 
that is unjust, inherent in the possibility of reading is the possibility 
of misreading.2 The authoritative materials of the law can become 
contaminated by "incorrect" readings (note that I do not yet define 
this word) which will then themselves become part of the authorita-
tive materials of the law through the principle of stare decisis. This 
poisoning of the authoritative materials increases as "incorrect" 
readings spawn other "incorrect" readings, which are worked into 
the body of authoritative materials, and so on. As a consequence, 
the law may travel far from the "correct" reading, whatever that 
may have been. Put another way, the Rule of Law requires that it 
1. There are also nonauthoritative readings; for example, the interpretations of liti-
gants, historians, and legal commentators (and even of dissenting judges) that also grow cu-
mulatively over time. I call these readings nonauthoritative not because they differ from 
those of judges (for they may not differ at all), but simply because they are not entitle to stare 
decisis effect. These nonauthoritative readings may influence judges and other legal deci-
sionmakers with the result that some aspects of these readings may become imported into the 
body of authoritative materials. Or, these readings may exist in tandem with the authorita-
tive readings for years, influencing and being developed by successive generations of litigants, 
historians, and legal commentators until they eventually influence the authoritative readings 
of judges. 
2. See J. CULLER, ON DECONSTRUCTION: THEORY AND CRITICISM AFTER STRUC· 
TURALISM 176 (1982); J. 0ERRIDA, MARGINS Of PHILOSOPHY 315-17 (A. Bass trans. 1982). 
1989] SYMPOSIUM 23 
be possible that a misreading-say of the privileges and immunities 
clause in The Slaughterhouse Cases J-could become fixed into the 
law by subsequent readings. The cumulative effect of readings and 
the possibility of misreadings at every step of the process, combined 
with the principle of stare decisis, creates the possibility that the law 
will experience greater and greater divergence from what anyone 
would have though a priori that the law required. Constitutional 
decisionmaking, then, is like the party game where each guest whis-
pers a message into the next person's ear, and finally the first and 
last incarnations of the message are compared. If the Constitution 
is indeed "hard" law, it must contain its own possibilities of cumu-
lative misunderstanding, possibilities that, as I have just argued, are 
endemic to the Rule of Law. 
The picture of adjudication that I have just presented has a 
further, and still more disturbing consequence: The processes of 
adjudication guarantee that what we do when we "interpret the 
Constitution" will have surprisingly little to do with the text itself. 
This point is not really so surprising when we consider what we 
actually do when we decide what an appropriate interpretation of 
the Constitution is. When a student takes the basic course in con-
stitutional law, normally the first assignment in the syllabus is to 
read the text of the Constitution itself. However, once the student 
has read the actual text of the Constitution, she very rarely ever 
refers to it again. Instead, she concerns herself not with her own 
reading of the Constitution, but with the successive readings that 
others-lawyers, judges, and scholars-have made of the text. At 
the risk of sounding obvious, constitutional law textbooks are fat, 
and grow fatter every year, not because the text of the Constitution 
is getting longer, but because the readings of the Constitution-the 
readings that we actually use to determine what the Constitution 
itself means-are growing in size. 
Too often we talk as if what we are interpreting when we inter-
pret the Constitution is the text of the document, pure and simple. 
But no one believes that when we interpret the Constitution we are 
supposed to look at the text of the Constitution really, really hard 
and that somehow the answers will pop out at us. Merely to state 
this vision of interpretation is to demonstrate its unreality. What is 
surprising, however, is that natural law theorists are prone to use 
this type of language just as much as positivists. From reading de-
scriptions of what the former theories entail, you might gather that 
somehow the natural law theorists diligently look away from the 
3. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872). 
24 CONSTITUTIONAL COMMENTARY [Vol. 6:21 
text and discover some values outside the Constitution that are nev-
ertheless to be enshrined within it. 
Of course, neither paradigm has much to do with the actual 
process of constitutional argument. For example, consider the fol-
lowing three questions that might come before the Supreme Court 
in the next few years: 
I. May a state provide strict liability for libels of private figures involving a 
matter of private concern, and may the state place the burden of showing truth as a 
defense upon the defendant in such cases? 
2. Are tuition vouchers for parochial schools constitutional if the state cre-
ates a system whereby the voucher can be used to pay for either public or private 
education? 
3. May the FCC ban the broadcast of racist speech if such speech is broad-
cast into the home at a time when impressionable children may hear it without 
parental supervision? 
No one, I think, seriously believes that the answers to these 
questions will be determined by reading the text of the first amend-
ment over and over again until the correct answers hit us. Nor does 
anyone think that these questions will be answered by an ad hoc 
inquiry into moral values divorced from previous interpretations of 
the first amendment. Rather, the very possibility of these kinds of 
questions has been created by previous readings of readings of the 
first amendment. Dun & Bradstreet v. Greenmoss Builders4 and 
Heppss create the framework for understanding the issues in the 
first example, even as these readings depend upon New York Times 
v. Sullivan,6 which in tum depends upon still earlier readings. Suc-
cessive readings of the Constitution have added new vocabulary, 
concepts, and principles to the corpus of materials that we use to 
understand what the Constitution requires. The process of adjudi-
cation is itself a process of add-judication, of addition and supple-
mentation. Statutory construction of the Constitution is precisely 
that-construction; by continuous readings and rereadings of the in-
creasing body of materials we create the framework by which suc-
cessive constitutional questions are posed, articulated, understood, 
and answered. 
I do not mean to suggest that judges cannot overrule previous 
precedents, or that previous readings ineluctably determine the sub-
sequent direction of the law. Rather, my point is that the context of 
decision of a case is shaped by previous readings even if the subse-
quent reading is a denial of the previous one, just as an adolescent is 
4. 472 u.s. 749 (1985). 
5. Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986). 
6. 376 u.s. 254 (1964). 
1989] SYMPOSIUM 25 
shaped by her parents' attitudes even as she consciously rejects 
them. 
If adjudication is addition and construal is construction, suc-
cessive readers are adding something to the body of materials. They 
are adding principles, policies, theories, distinctions, syntheses, vo-
cabulary, and historical evidence. (We must always remember that 
history is itself a text that is not simply given but must be inter-
preted just like any other text.) In short, successive readers of the 
text provide later readers with a smorgasbord of conflicting inter-
pretations in which we will find the basis for our own interpretation, 
an interpretation which will be folded into the existing body just as 
a chef folds an ingredient into a recipe. 1 
If the picture of adjudication I have proposed is correct, then 
the Rule of Law does not merely limit the types of interpretations 
that the Constitution may someday come to have. Rather, the Rule 
of Law actually creates the possibility that our understandings of 
the Constitution will grow and develop-will in fact change in the 
very way that the "hard law" argument given above suggests that 
they should not. s 
I have left one unfinished piece of business. In my earlier argu-
ments, I deliberately refused to explain what a "correct" reading of 
earlier readings was, noting merely that the Rule of Law guaranteed 
the possibility that incorrect readings could be enshrined in the de-
veloping mass of materials. I reserved discussion of this issue for 
two reasons. First, I do not think that the above arguments commit 
us to the view that there is a unique "correct" reading of the Consti-
tution at any given time, although I freely concede that there always 
are and always have been many incorrect readings. But second, and 
more importantly, I would now like to argue that the Rule of Law 
actually guarantees that the standards of correct interpretation will 
change over time. 
Suppose that we granted that the present readings of the com-
7. The doctrinal concepts and distinctions that become part of succeeding cases may 
spring from the judge's mind as she grapples with the case, or may be suggested by the briefs 
of litigants before her or even by the writings of legal commentators. The point is that suc-
ceeding generations of legal readers collectively build intellectual frameworks for understand-
ing how constitutional issues are to be resolved. These interpretations make law in the most 
essential sense; not only do they affect rights and responsibilities, but they help frame the 
terms of later constitutional debate. We could avoid the conclusion that later readers are 
really adding things to the Constitution only ir" we were to claim that the doctrinal and intel-
lectual framework of later readings was somehow always imminent in the original text of the 
Constitution. However, this would commit us to an untenable set of metaphysical beliefs. 
8. In fact, these conclusions are unavoidable if one takes seriously the positivist em-
phasis of the "hard law" view. For, as any good positivist will tell you, judges are agents of 
the state, and always make law as they interpret it. I would merely add that judges not only 
make law, but they also recreate it through their various readings and rereadings. 
26 CONSTITUTIONAL COMMENTARY [Vol. 6:21 
merce clause are not "correct," because they are inconsistent with 
the much narrower scope of federal regulatory power that was one 
of the compromises necessary to achieve ratification of the Consti-
tution. Finding ourselves faced with a series of incorrect interpreta-
tions that have, nevertheless, become imbedded in constitutional 
doctrine and constitutional theory, what are we to do? I do not 
mean to suggest that stare decisis prevents us from rejecting these 
interpretations, for that is mere bootstrapping. I do think, however, 
that the fact that they are not "correct" readings in the original 
sense is not by itself a sufficient reason to reject them. My argument 
is that the meaning of what is a "correct" reading has itself been 
altered by the process of adjudication. 
How is such a result possible? Suppose that we are given two 
doctrinal areas of constitutional law, both of which are the result of 
a successive entrenchment of "incorrect" readings. If both are "in-
correct," we have a number of alternatives. First, we can admit 
that the principle of stare decisis and the requirements of the Rule of 
Law-predictability, nonretroactivity, and equality of application-
have forced us to accept both sets of readings as authoritative, even 
if not "correct" in the sense described earlier. We thus capitulate to 
the bootstrapping problem discussed earlier. In a sense, by privileg-
ing the later readings over the earlier ones, we violate the Rule of 
Law in order to preserve it. 
Second, we can hold fast to our original principles, and over-
turn all of the incorrect readings, regardless of the consequences for 
settled expectations. Here too, we violate the Rule of Law in order 
to preserve it, albeit in precisely the opposite manner, by privileging 
the earlier readings over the later ones. 
Both alternatives are equally unpalatable to most constitu-
tional scholars. In some cases, as in the modern commerce clause 
cases, Brown v. Board of Education,9 and Bolling v. Sharpe, 10 we 
simply cannot go back to earlier interpretations that might have had 
a superior pedigree. Nevertheless, we would be equally loath to 
commit ourselves in advance to accepting the present state of con-
stitutional law as an unchangeable orthodoxy. If we think succes-
sive interpretations of article II have given the executive too much 
power in foreign affairs, we would not simply want to surrender our 
ability to return to a more appropriate balance of powers. More-
over, such an approach would have, at various times, preserved in-
famous cases like Dred Scott 11 or Plessy v. Fergus0n.12 
9. 347 u.s. 483 (1954). 
10. 347 u.s. 497 (1954). 
II. Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856). 
1989] SYMPOSIUM 27 
A third alternative, and I think the alternative that most con-
stitutional scholars today would choose, would be to argue that we 
should preserve and even extent some "misinterpretations," but 
that no such deference should be given to others. We might retain 
the present understanding of the commerce clause while keeping 
alive the possibility that we might someday return to an earlier un-
derstanding of (for example) the eleventh amendment. Note how-
ever, that if we adopt this approach, the original standards of 
"correctness" cannot determine which misinterpretations to accept 
and which to reject. For, by hypothesis, all such interpretations are 
misinterpretations. Thus, we must develop a revised theory of cor-
rect interpretation that differs from the original theory in that it 
allows us to choose between misinterpretations. The fact that stan-
dards of correct interpretation have changed, however, does not 
mean that we are left to our own devices with no guidance whatso-
ever. There are already rich sources of moral and political princi-
ples to be garnered from the existing readings of the Constitution. 
What constitutes a correct interpretation of the Constitution will 
then become the result of moral and political debate within the 
framework of the constitutional tradition itself, a tradition that de-
velops even as one finds oneself within it and living through it. 
Thus, I return to the question I originally began with: Does 
the fact that the Constitution is law consistent with the principle of 
the Rule of Law tell us anything about how the Constitution should 
be interpreted? My conclusion is precisely the opposite of the an-
swer one would expect: The Rule of Law requires not only that 
constitutional tradition-the set of readings and readings of read-
ings of the Constitution-will grow and develop, but that our stan-
dards of what constitutes a correct interpretation of the 
Constitution will also change and develop over time. The Rule of 
Law, which seemed at first to stand as a bulwark against the notion 
of an evolving Constitution, in fact creates the very possibility of its 
existence. 
12. 163 u.s. 537 (1896). 


Balkin, Jack M

Yale Law School Legal Scholarship Repository

THE RULE OF LAW AS A SOURCE OF
CONSTITUTIONAL CHANGE
JM. Balkin*
Does the fact that the Constitution is law tell us anything
about the proper method of interpreting it or in any way constrain
the sorts of interpretations that we might make? The assumption
underlying this question is that if the Constitution is law, and there-
fore must adhere to the ideal of the Rule of Law, some interpretive
theories of the Constitution might thereby be foreclosed. In partic-
ular, Professor Alexander's essay suggests that one type of theory, a
"perfectionist theory," is inconsistent with the Constitution under-
stood in this way. Let me quote a particularly interesting passage in
his essay, in which he makes this point as part of an argument for a
"hard law" theory of the Constitution:
[L]aw that is "interpreted" so that it is always just, good, and wise-perfect-in the
eyes of the interpreter fails to fulfill the moral role that makes law valuable. That
role is to decide and settle, at least temporarily, what is just, good, and right, even if
the decision is viewed by some as incorrect.... In other words, law cannot fulfill
the moral function signified by the notion of "a society of laws, not of men," if its
interpretive methodology leaves it unsettled to the extent that political and moral
debates remain unsettled.
The liberal principle of the Rule of Law requires that law be
predictable, nonretroactive, and equally applicable to all citizens. It
is precisely because of these characteristics that it qualifies as the
Rule of Law and not of persons. These principles are deeply tied to
the liberal belief that a person's freedoms should not be subjected to
the arbitrary will of another; only by postulating an impersonal,
equally applicable set of norms can we achieve this goal of liberal
social theory.
Nevertheless, the argument continues, the very qualities that
make possible the Rule of Law-predictability, nonretroactivity,
and quality of application-also create the possibility that the estab-
lished law will be unjust in the view of some. The fixed quality of
law that creates the possibility of a Rule of Law also creates the
possibility that the law will be fixed in an unjust manner. If the
* Visiting Associate Professor of Law, University of Texas; Associate Professor of
Law, University of Missouri-Kansas City.
CONSTITUTIONAL COMMENTARY [Vol. 6:21
Constitution is "hard law" of this nature, the Constitution must
contain within itself the possibility of being unjust. Hence, one can-
not argue that the Constitution enforces a right simply because it is
more just or comports with a natural law theory of rights. For if it
were always possible to argue in this way, then the Constitution
could not function as law in the sense of a fixed set of rules applica-
ble to all citizens.
I would like to respond to this argument not by disputing its
premises but by taking its logic one step further. The Rule of Law
requires not only that laws apply to citizens, but that laws must be
applied. Application requires adjudication, and the Rule of Law
requires a statement of reasons for decision to demonstrate the con-
nection between the decision and the existing body of law. Thus,
the Rule of Law requires continual reading and rereading of the
materials of the law in differing factual contexts in order for judges
to decide cases. As judges decide cases, their readings become part
of the corpus of the law, which then is read over and over again,
and so forth. The result is that the Rule of Law creates an ever
increasing mass of readings and rereadings of a potentially ever-in-
creasing amount of authoritative materials.,
This institutional feature of the Rule of Law poses an interest-
ing analogy to the "hard law" argument given above. Just as inher-
ent in the possibility of a fixed law is the possibility of a fixed law
that is unjust, inherent in the possibility of reading is the possibility
of misreading.2 The authoritative materials of the law can become
contaminated by "incorrect" readings (note that I do not yet define
this word) which will then themselves become part of the authorita-
tive materials of the law through the principle of stare decisis. This
poisoning of the authoritative materials increases as "incorrect"
readings spawn other "incorrect" readings, which are worked into
the body of authoritative materials, and so on. As a consequence,
the law may travel far from the "correct" reading, whatever that
may have been. Put another way, the Rule of Law requires that it
1. There are also nonauthoritative readings; for example, the interpretations of liti-
gants, historians, and legal commentators (and even of dissenting judges) that also grow cu-
mulatively over time. I call these readings nonauthoritative not because they differ from
those of judges (for they may not differ at all), but simply because they are not entitle to stare
decisis effect. These nonauthoritative readings may influence judges and other legal deci-
sionmakers with the result that some aspects of these readings may become imported into the
body of authoritative materials. Or, these readings may exist in tandem with the authorita-
tive readings for years, influencing and being developed by successive generations of litigants,
historians, and legal commentators until they eventually influence the authoritative readings
of judges.
2. See J. CULLER, ON DECONSTRUCTION: THEORY AND CRITICISM AFER STRUC-
TURALISM 176 (1982); J. DERRIDA, MARGINS OF PHILOSoPHY 315-17 (A. Bass trans. 1982).
SYMPOSIUM
be possible that a misreading-say of the privileges and immunities
clause in The Slaughterhouse Cases3--could become fixed into the
law by subsequent readings. The cumulative effect of readings and
the possibility of misreadings at every step of the process, combined
with the principle of stare decisis, creates the possibility that the law
will experience greater and greater divergence from what anyone
would have though a priori that the law required. Constitutional
decisionmaking, then, is like the party game where each guest whis-
pers a message into the next person's ear, and finally the first and
last incarnations of the message are compared. If the Constitution
is indeed "hard" law, it must contain its own possibilities of cumu-
lative misunderstanding, possibilities that, as I have just argued, are
endemic to the Rule of Law.
The picture of adjudication that I have just presented has a
further, and still more disturbing consequence: The processes of
adjudication guarantee that what we do when we "interpret the
Constitution" will have surprisingly little to do with the text itself.
This point is not really so surprising when we consider what we
actually do when we decide what an appropriate interpretation of
the Constitution is. When a student takes the basic course in con-
stitutional law, normally the first assignment in the syllabus is to
read the text of the Constitution itself. However, once the student
has read the actual text of the Constitution, she very rarely ever
refers to it again. Instead, she concerns herself not with her own
reading of the Constitution, but with the successive readings that
others-lawyers, judges, and scholars-have made of the text. At
the risk of sounding obvious, constitutional law textbooks are fat,
and grow fatter every year, not because the text of the Constitution
is getting longer, but because the readings of the Constitution-the
readings that we actually use to determine what the Constitution
itself means-are growing in size.
Too often we talk as if what we are interpreting when we inter-
pret the Constitution is the text of the document, pure and simple.
But no one believes that when we interpret the Constitution we are
supposed to look at the text of the Constitution really, really hard
and that somehow the answers will pop out at us. Merely to state
this vision of interpretation is to demonstrate its unreality. What is
surprising, however, is that natural law theorists are prone to use
this type of language just as much as positivists. From reading de-
scriptions of what the former theories entail, you might gather that
somehow the natural law theorists diligently look away from the
3. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872).
1989]
CONSTITUTIONAL COMMENTARY [Vol. 6:21
text and discover some values outside the Constitution that are nev-
ertheless to be enshrined within it.
Of course, neither paradigm has much to do with the actual
process of constitutional argument. For example, consider the fol-
lowing three questions that might come before the Supreme Court
in the next few years:
1. May a state provide strict liability for libels of private figures involving a
matter of private concern, and may the state place the burden of showing truth as a
defense upon the defendant in such cases?
2. Are tuition vouchers for parochial schools constitutional if the state cre-
ates a system whereby the voucher can be used to pay for either public or private
education?
3. May the FCC ban the broadcast of racist speech if such speech is broad-
cast into the home at a time when impressionable children may hear it without
parental supervision?
No one, I think, seriously believes that the answers to these
questions will be determined by reading the text of the first amend-
ment over and over again until the correct answers hit us. Nor does
anyone think that these questions will be answered by an ad hoc
inquiry into moral values divorced from previous interpretations of
the first amendment. Rather, the very possibility of these kinds of
questions has been created by previous readings of readings of the
first amendment. Dun & Bradstreet v. Greenmoss Builders4 and
Hepps create the framework for understanding the issues in the
first example, even as these readings depend upon New York Times
v. Suivan,6 which in turn depends upon still earlier readings. Suc-
cessive readings of the Constitution have added new vocabulary,
concepts, and principles to the corpus of materials that we use to
understand what the Constitution requires. The process of adjudi-
cation is itself a process of add-judication, of addition and supple-
mentation. Statutory construction of the Constitution is precisely
that-construction; by continuous readings and rereadings of the in-
creasing body of materials we create the framework by which suc-
cessive constitutional questions are posed, articulated, understood,
and answered.
I do not mean to suggest that judges cannot overrule previous
precedents, or that previous readings ineluctably determine the sub-
sequent direction of the law. Rather, my point is that the context of
decision of a case is shaped by previous readings even if the subse-
quent reading is a denial of the previous one, just as an adolescent is
4. 472 U.S. 749 (1985).
5. Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986).
6. 376 U.S. 254 (1964).
SYMPOSIUM
shaped by her parents' attitudes even as she consciously rejects
them.
If adjudication is addition and construal is construction, suc-
cessive readers are adding something to the body of materials. They
are adding principles, policies, theories, distinctions, syntheses, vo-
cabulary, and historical evidence. (We must always remember that
history is itself a text that is not simply given but must be inter-
preted just like any other text.) In short, successive readers of the
text provide later readers with a smorgasbord of conflicting inter-
pretations in which we will find the basis for our own interpretation,
an interpretation which will be folded into the existing body just as
a chef folds an ingredient into a recipe.7
If the picture of adjudication I have proposed is correct, then
the Rule of Law does not merely limit the types of interpretations
that the Constitution may someday come to have. Rather, the Rule
of Law actually creates the possibility that our understandings of
the Constitution will grow and develop-will in fact change in the
very way that the "hard law" argument given above suggests that
they should not.8
I have left one unfinished piece of business. In my earlier argu-
ments, I deliberately refused to explain what a "correct" reading of
earlier readings was, noting merely that the Rule of Law guaranteed
the possibility that incorrect readings could be enshrined in the de-
veloping mass of materials. I reserved discussion of this issue for
two reasons. First, I do not think that the above arguments commit
us to the view that there is a unique "correct" reading of the Consti-
tution at any given time, although I freely concede that there always
are and always have been many incorrect readings. But second, and
more importantly, I would now like to argue that the Rule of Law
actually guarantees that the standards of correct interpretation will
change over time.
Suppose that we granted that the present readings of the corn-
7. The doctrinal concepts and distinctions that become part of succeeding cases may
spring from the judge's mind as she grapples with the case, or may be suggested by the briefs
of litigants before her or even by the writings of legal commentators. The point is that suc-
ceeding generations of legal readers collectively build intellectual frameworks for understand-
ing how constitutional issues are to be resolved. These interpretations make law in the most
essential sense; not only do they affect rights and responsibilities, but they help frame the
terms of later constitutional debate. We could avoid the conclusion that later readers are
really adding things to the Constitution only if we were to claim that the doctrinal and intel-
lectual framework of later readings was somehow always imminent in the original text of the
Constitution. However, this would commit us to an untenable set of metaphysical beliefs.
8. In fact, these conclusions are unavoidable if one takes seriously the positivist em-
phasis of the "hard law" view. For, as any good positivist will tell you, judges are agents of
the state, and always make law as they interpret it. I would merely add that judges not only
make law, but they also recreate it through their various readings and rereadings.
1989]
CONSTITUTIONAL COMMENTARY [Vol. 6:21
merce clause are not "correct," because they are inconsistent with
the much narrower scope of federal regulatory power that was one
of the compromises necessary to achieve ratification of the Consti-
tution. Finding ourselves faced with a series of incorrect interpreta-
tions that have, nevertheless, become imbedded in constitutional
doctrine and constitutional theory, what are we to do? I do not
mean to suggest that stare decisis prevents us from rejecting these
interpretations, for that is mere bootstrapping. I do think, however,
that the fact that they are not "correct" readings in the original
sense is not by itself a sufficient reasbn to reject them. My argument
is that the meaning of what is a "correct" reading has itself been
altered by the process of adjudication.
How is such a result possible? Suppose that we are given two
doctrinal areas of constitutional law, both of which are the result of
a successive entrenchment of "incorrect" readings. If both are "in-
correct," we have a number of alternatives. First, we can admit
that the principle of stare decisis and the requirements of the Rule of
Law-predictability, nonretroactivity, and equality of application-
have forced us to accept both sets of readings as authoritative, even
if not "correct" in the sense described earlier. We thus capitulate to
the bootstrapping problem discussed earlier. In a sense, by privileg-
ing the later readings over the earlier ones, we violate the Rule of
Law in order to preserve it.
Second, we can hold fast to our original principles, and over-
turn all of the incorrect readings, regardless of the consequences for
settled expectations. Here too, we violate the Rule of Law in order
to preserve it, albeit in precisely the opposite manner, by privileging
the earlier readings over the later ones.
Both alternatives are equally unpalatable to most constitu-
tional scholars. In some cases, as in the modem commerce clause
cases, Brown v. Board of Education,9 and Bolling v. Sharpe,lO we
simply cannot go back to earlier interpretations that might have had
a superior pedigree. Nevertheless, we would be equally loath to
commit ourselves in advance to accepting the present state of con-
stitutional law as an unchangeable orthodoxy. If we think succes-
sive interpretations of article II have given the executive too much
power in foreign affairs, we would not simply want to surrender our
ability to return to a more appropriate balance of powers. More-
over, such an approach would have, at various times, preserved in-
famous cases like Dred Scott 1 or Plessy v. Ferguson.12
9. 347 U.S. 483 (1954).
10. 347 U.S. 497 (1954).
11. Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856).
SYMPOSIUM
A third alternative, and I think the alternative that most con-
stitutional scholars today would choose, would be to argue that we
should preserve and even extent some "misinterpretations," but
that no such deference should be given to others. We might retain
the present understanding of the commerce clause while keeping
alive the possibility that we might someday return to an earlier un-
derstanding of (for example) the eleventh amendment. Note how-
ever, that if we adopt this approach, the original standards of
"correctfiess" cannot determine which misinterpretations to accept
and which to reject. For, by hypothesis, all such interpretations are
misinterpretations. Thus, we must develop a revised theory of cor-
rect interpretation that differs from the original theory in that it
allows us to choose between misinterpretations. The fact that stan-
dards of correct interpretation have changed, however, does not
mean that we are left to our own devices with no guidance whatso-
ever. There are already rich sources of moral and political princi-
ples to be garnered from the existing readings of the Constitution.
What constitutes a correct interpretation of the Constitution will
then become the result of moral and political debate within the
framework of the constitutional tradition itself, a tradition that de-
velops even as one finds oneself within it and living through it.
Thus, I return to the question I originally began with: Does
the fact that the Constitution is law consistent with the principle of
the Rule of Law tell us anything about how the Constitution should
be interpreted? My conclusion is precisely the opposite of the an-
swer one would expect: The Rule of Law requires not only that
constitutional tradition-the set of readings and readings of read-
ings of the Constitution-will grow and develop, but that our stan-
dards of what constitutes a correct interpretation of the
Constitution will also change and develop over time. The Rule of
Law, which seemed at first to stand as a bulwark against the notion
of an evolving Constitution, in fact creates the very possibility of its
existence.
12. 163 U.S. 537 (1896).
1989]



The Rule of Law as a Source of Constitutional Change

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The Rule of Law as a Source of Constitutional Change.

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