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12/07/2012

Michael Stern on James Monroe and the Recess Appointments Litigation
Michael Ramsey

At Point of Order, Michael Stern: Did James Monroe's Presence at the Virginia Ratifiying Convention Shed Light on the Meaning of the Recess Appointments Clause? (Apparently, in the recess appointments litigation, the government's attorney claimed it did).

From the post:

Monroe was not at the 1787 Philadelphia Convention, but he was a delegate to the Virginia convention that ratified the Constitution. Monroe voted against ratification, contending that it gave the federal government too much power. ...

So what are we to make of the fact that, more than 30 years after the drafting and ratification of the Constitution, Monroe received an opinion from his Attorney General that the [recess appointments clause] applied to all vacancies that “happen to exist,” rather than only those that “happen to arise,” during the Senate’s recess? By Wirt’s own admission, his interpretation relied on the “reason and spirit” of the Constitution, while the contrary interpretation was more consistent with its “letter.” Moreover, although not mentioned (and possibly not known) by Wirt, there were at least two actual framers, Edmund Randolph and Alexander Hamilton, who made far more contemporaneous statements in support of the “happen to arise” interpretation.

Stern concludes (rightly, in my view) that reliance on Monroe here to establish original meaning is quite dubious.  To his points, I would add this: a central problem with post-ratification evidence is that, post-ratification, people have personal and political reasons to support particular interpretations that have nothing to do with whether the interpretation is a good reading of the text.  In this case, for example, Wirt's reading of the recess appointments clause favored the President (by making recess appointments more available).  Even if we conclude from President Monroe's silence that he agreed with Wirt, his view might have been driven by his institutional interest in augmenting powers of the presidency rather than by his faithful recollection of what people earlier thought the clause meant.

NOTE:  Additional coverage of the recess appointments litigation at Point of Order here and here.