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Posner on Originalism and Recess Appointments

At Slate, Eric Posner wrote a post criticizing the originalist interpretation of the Recess Appointments Clause. In the post, Posner discusses my paper presenting originalist evidence, but argues that originalism is a bad way to resolve this issue. The post was put up about 10 days ago, but I didn’t see it then.

Posner’s argument is that, whatever the original meaning of the Recess Appointments Clause, the question at the Supreme Court today should not be decided based on originalism:

Is the right way to resolve a 21st-century controversy to place the minutiae of the 1790s under a magnifying glass and ignore everything that came later? Whether you come down for or against Obama, surely the answer is no.

Obviously, I don’t agree that the original meaning should be ignored. As to subsequent history, I have a new article that argues that it does not justify departing from the original meaning.

Let me examine a couple of Posner’s arguments. He writes:

A conscientious originalist should also take into account that the recess appointment issue was never high on the founders’ agenda, that they may have used broad language to duck an elusive policy question, and that the early presidents and their advisers, who were politically vulnerable, may have cautiously interpreted the recess appointments clause to avoid a fight with Congress.

I don’t agree. I don’t know how Eric knows the issue didn’t matter much to the founders. Nor do I see any reason to think that they used broad language to duck an elusive policy question – in fact, the language is pretty darn clear (especially as to the happen issue). And I don’t know why a public meaning originalist would care if these speculations did turn out to be true – what matters is what they enacted, not their motivations. Finally, given that early interpreters, such as Hamilton and Randolph, linked their views to the language of the Constitution, it would be odd to regard their interpretations as disingenuous or politically motivated (without some evidence to that effect); if we followed that method, we could reject any evidence we didn’t like.

Posner also argues that we should consider modern policy considerations. Yet, it is not clear why the arguments he appears to make for departing from the original meaning actually support that result. For example, he claims that the originalist must ignore the vast expansion of the federal bureaucracy and the party system. But it is not clear why those changes suggest a broader recess appointment power. In a large bureaucracy, there are more people who can serve in an acting position. Posner writes that the party system allows obstruction in the Senate, but the filibuster was ended by a simple majority vote in the Senate without compromising the Constitution.

In the end, Posner’s argument is based on his belief that the modern decisionmakers should rewrite the Constitution if they believe that would be desirable. The old Constitution is inadequate and outdated. But there are good reasons for believing that the Constitution set up a desirable arrangement. The supermajoritarian process for enactment meant that a great deal of thought and deliberation went into it.  And the decision to require senatorial confirmation both made sense originally and continues to do so. Moreover, the original constitutional decisions are accepted by people as the law of the land. It is no accident that nonoriginalists never admit in public that they are departing from the original meaning based on policy arguments (as opposed to precedent). It is not generally accepted that the Supreme Court justices get to decide these things as a matter of policy. Nor, I would argue, is it a good way to decide these matters.

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