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Financial Oversight and Management Board v. Noel Canning
Chris Green

Justice Breyer’s opinion yesterday for the Court in Financial Oversight and Management Board v. Aurelius Investment, finding that certain bankruptcy-related officers in Puerto Rico are not “officers of the United States” under the Appointments Clause, made a few comments about the interpretive relevance of subsequent practice that strike a much more originalist tone than Breyer’s comments on the same issue for the Court six years ago in NLRB v. Noel Canning.

One big issue for originalist use of subsequent practice is whether it is epistemic (i.e., shedding light on the meaning expressed by the text in its original context) or instead constitutive (i.e., filling in a gap that was left because that original meaning was incomplete). An old joke about three umpires illustrates the difference. The first says “There’s balls and strikes, and I call them as I see them.” The second says “No—there’s balls and strikes, and I call them as they are.” The third says, “No, you’re both wrong. There’s balls and strikes, but they aren’t anything until I call them!”

In a constitutional setting, the first umpire’s attitude, rather than the second or third, is what most originalists want out of officeholders after the Constitution is adopted. Officeholders should do their best, though their decisions neither constitute the constitutional subject matter—the Constitution—nor do they capture it infallibly.

The recess-appointments-clause case from 2014, Noel Canning, though, included some comments on subsequent practice that sounded a bit like the approach of the third umpire: “[T]his Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” It is much easier to see the interpretive relevance of practices that began in the 1820s if those practices are meant to fill in gaps, constitutively, rather than shed light, epistemically, on the meaning expressed in the original context. Preferring William Wirt in 1823 to Edmund Randolph in 1791 doesn’t make a lot of sense if we are looking for reliable early observers of the meaning conveyed by the text in its original context. Only if we are looking for reliance interests instead of reliable guides might the 1820s trump the 1790s.

Breyer’s opinion yesterday talked again about subsequent practice. His language at page 11, though, was more encouragingly epistemic: “Like Justice Thomas, we think the practice of the First Congress is strong evidence of the original meaning of the Constitution. We find this subsequent history similarly illuminates the text’s meaning.” At page 21 he repeated that the Court looked to find “the test established by the Constitution’s text, illuminated by historical practice.” To follow such a test was to be “more faithful to the Clause’s original meaning.”

It is encouraging to see seven justices—not even including Justice Thomas!—take the “original meaning of the Constitution” as their touchstone for interpretation. The notions of “evidence” and “illumination” likewise give subsequent practice a refreshingly epistemic subordinate role. The FOMB Court takes subsequent history as a guide to original meaning, not as an independent truthmaker for constitutional requirements.