« Symposium on "America's Unwritten Constitution"
Michael Ramsey
| Main | Daniel Smyth on the Origination Clause and Eighteenth-Century British Procedure
Michael Ramsey


Practical Originalism and the Recess Appointments Brief
Michael Ramsey

At Volokh Conspiracy, Randy Barnett has this post on our Brief of Originalist Scholars in the Noel Canning case.  He makes several points that are worth further emphasis:

1.  Legal scholars can use originalist methodologies to reach sound conclusions about the Constitution's meaning.  As he puts it:

[The Brief] exemplifies how an original public meaning analysis is a legal analysis of the meaning of language at the time of its enactment that is well within the competence of lawyers and judges to present and assess.

Historians and non-originalists argue that legal scholarship lacks the tools to identify original meaning.  But that is, to a significant extent, because they misunderstand what originalist analysis seeks to do.  Modern originalism does not try to guess at the subjective intentions of the framers, or of the founding generation as a whole, based on the supposed spirit of the times or the idiosyncrasies of particular people.  Rather, it is fundamentally textual analysis -- albeit textual analysis with attention, as any good textualist analysis has, to the context in which the text was written.  The originalist scholars' brief is, a Professor Barnett says, an example of this approach.  It does not make broad claims about disputed aspects of the history of the founding era.  It is -- and I use this word in the most positive way -- legalistic. 

2.  Originalist scholarship is practical and capable of addressing modern controversies.  Professor Barnett says (and I agree):

[The Brief] illustrates how originalist scholarship is necessary for high quality originalist judicial decision making. It is unrealistic to expect judges to do the work that Mike [Rappaport] and others have done on the original meaning of the Recess Appointments Clause.  But judges are quite competent to assess the comparative strength of this evidence when weighed against contrary arguments, the way they weigh other evidence that is presented to them in our adversary legal system.  Contrary to the common complaint that legal scholars produce writings of value only to themselves, originalist scholars of all stripes provide an essential function for the accurate interpretation by courts of the text of the Constitution.

I would add this point: many theories of constitutional interpretation hold that original meaning is one aspect, but not the only aspect, of modern meaning.  (At minimum, many self-identified originalists think that judicial precedent -- even non-originalist precedent -- can be a factor).  Any theory that acknowledges original meaning as a starting point, if not an ending point, needs to get the starting point right.  Originalist analysis does not imply that only originalist analysis is relevant.  (But in this case, as Professors McConnell and Baude show in a separate brief, there is no persuasive reason to depart from the original meaning).

3.  Originalism does not have a necessary political valence.  The recess appointments power can be misused by Democratic and Republican Presidents.  It happens that the brief is filed in opposition to the Obama administration's practices.  But as Professor Barnett notes, the core of the brief rests on Mike Rappaport's 2005 article, written during President George W. Bush's aggressive use of what we believe were unconstitutional "recess" appointments.  The attraction of originalism is (or should be) that it is apolitical.

In sum, the brief is an attempt to lead by example.  It seeks to demonstrate how originalist methodology can be used responsibly by legal scholars to provide legal, rule-based conclusions relevant to modern disputes -- that is, most fundamentally, its goal is to show that originalism, as practical matter, can be done.