Inviting judges to consider the consequences of their decisions or recent practice as guides to interpretation threatens to bury originalism.
Over at Slate, Eric Posner has a piece attacking the D.C. Circuit’s Recess Appointment decision in Noel Canning. Posner writes:
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.
In fact, we know next to nothing about what the founders intended because of the paucity of contemporary documents revealing their intentions. We can surmise that they wanted the president and Senate to share the appointments power but also that they recognized that the president might need to make appointments to keep the government running when the Senate was out of session. Both the court’s and the Obama administration’s readings of the clause are consistent with this general purpose, so it is idle speculation to draw on the original understanding to resolve the dispute.
Eric Posner is an accomplished scholar, but with all due respect this is not his strongest work. I don’t want to repeat myself endlessly about the Recess Appointments Clause, so let me just make two points.
First, we know quite a bit about the original meaning of the Recess Appointments Clause. My article on the subject spends over 90 pages discussing the matter. In my view (but not only in my view), the originalist case for the conclusions that I reached and the D.C. Circuit reached is quite strong. Alas, Posner shows no evidence of having read the article or other scholarship on the matter.
Second, what Posner does show evidence of having done is to have read the D.C. Circuit decision and to have focused on the weakest part of it — its reliance on the definite article. Yes, that can be criticized. But criticizing the weakest case of one’s opponent is hardly the way to convince informed people, even if it works well on the uninformed.
This tactic might also be the result of cognitive bias. I remember a social psychology experiment where they gave each side in a debate two arguments to make — a stronger one and a weaker one. Some time later, they asked each side which arguments they could remember. People remembered the stronger argument that they made and the weaker argument the other side made.
For what it is worth, I believe the originalist case for the narrow interpretation of the Recess Appointments Clause is one of the stronger originalist arguments we have. Some originalist issues involve close cases; some do not. Perhaps Posner is not an originalist and does not care what the original meaning is. But in this case I do not think one can claim that we simply don’t know what the original meaning is.