Rappaport on Posner on Recess Appointments

Michael Rappaport's post, Eric Posner on the Recess Appointments Clause, responds to Posner's Indefinite Articles on Slate. Rappaport's main point is that Posner evidently wrote his Slate piece without consulting the relevant literature--one of the great risks of blogging and op/ed writing (as every academic blogger knows, frequently to our regret). Of course, Posner's bottom line would be unlikely to change if he were aware of the evidence of original meaning--since he believes that the communicative content of the constitutional text is not binding on the Supreme Court. Rappaport's article on this topic, The Original Meaning of the Recess Appointments Clause, is a must for anyone who wants to think in a serious way about originalism and the District of Columbia Circuit's opinion in Canning v. NLRB. But I want to comment on a distinct point made by Posner in the following passage:

But here’s the point. It defies belief that the founders intended to constrain recess appointments by using the word the rather than a, or by using the word happen rather than exist. If the founders had feared that the president would abuse the recess appointments power in order to create a tyranny, they would have made their intentions to constrain the president a bit more explicit.

This point has substantial rhetorical power. Stated in the abstract, it does seem silly to imagine that anything important could hang on the distinction between "the" (the definite article) and "a" (the indefinite article).  Posner's argument suggests that the choice between "the" and "a" is a mere technicality or pedantic insistence on a formal communicative style.

But as soon as you think about the way we use these words in ordinary language, it becomes apparent that quite a lot of meaning can be expressed via this simple distinction. Some examples of the 

• "Be sure to cite a case for that proposition." As opposed to "Be sure to cite the case for that proposition."  The two sentences mean something entirely different.  The first one commands the use of some authority and suggests that there are multiple options; the second command directs the use of a particular case, the identity of which might be clear in context or provided in response to a follow up question.
• "A rolling stone gathers no moss"--ordinarily applies to all rolling stones.  "The rolling stone gathers no moss"--applies to a particular stone and no other.

In these examples, the choice of "a" versus "the" makes all the difference.  These are powerful words that allow us to communicate with one word, complex ideas that would otherwise be quite cumbersome: "Each and every rolling stone is such that it gathers no moss."

Of course, the communicative content conveyed by use of the definite or indefinite article depends on context.  So the question whether Canning was correct about original meaning depends not only on semantics (the acontextual meaning of "the" and "a") but also on pragmatics (the contribution to meaning made by the communicative context of the Recess Appointments Clause).  When Posner asserts that "it defies belief" to assert the use of "the" and "happens" was intended to affect the meaning of the clause without an analysis of context (of the kind Rappaport provided in his article), he reveals a naive understanding of the way that linguistic communication works.