When
Noel Canning v. NLRB was decided last June, several commentators noted that the
5-4 vote marked a victory for living constitutionalism (represented by Justice
Breyer's opinion) and a defeat for originalism (represented by Justice Scalia's
concurrence, which read like a dissent).
In
fact, Breyer's opinion isn't particularly living constitutionalist. It is
traditionalist. It is strongly rooted in past practice. It argues that we
should not disturb conventions that are of long-standing. If living
constitutionalism is the idea that the Constitution should be interpreted to
keep abreast of changing times and conditions, Breyer’s Noel Canning opinion doesn't
seem all that interested in *that* project. The opinion argues, instead, that
there is a long history of interpreting the recess appointments clause in a
particular way, and we should retain it unless there are strong considerations
otherwise. If you applied the logic of
this opinion to same-sex marriage, you would quickly discover that Breyer
sounds much more like a conservative traditionalist than a living
constitutionalist. Indeed, I can easily
imagine parts of Breyer's opinion being quoted by conservatives to criticize
liberals in later cases. (You read it
here first.)
Conversely,
Scalia's opinion, although framed in the language of originalism and
textualism, is the truly revolutionary opinion. Here (in marked contrast to
many of his other writings) Scalia is skeptical of arguments from tradition. He
argues that deferring to an imagined tradition tends to favor stronger parties
(Presidents, who can act decisively) over weaker ones (Congress, which faces
collective action problems). He asserts that there is no unbroken history of
established practice. And even if there is such a history, (1) it may not be
worthy of our respect because it reflects past usurpations of power; and (2) we
should disregard it in favor of the text. Scalia’s argument in Noel Canning is
radical, not in the sense of being left-wing, but radical in the sense of
seeking to return to the root of things and argue them once again based on
first principles. But of course, that’s
what originalism is—radical, not conservative.
Indeed,
I would go much further. A central claim
of my recent scholarship has been that we are continually misled by accepting the
familiar opposition between originalism and the idea of a living Constitution. For example, I have argued that the
originalism of the modern conservative movement *is* living constitutionalism--
it is the living constitutionalism of movement conservatives, who want to
reform and redeem American constitutionalism, which they believe took a wrong
turn in the middle of the twentieth century.
Like the great liberal Justice Hugo Black before them, contemporary
conservatives have adopted the language of originalism and textualism to
achieve their revolutionary goals. In Noel Canning, Scalia does not sound at
all Burkean-- he sounds like a man who wants to shake things up.
Why
is it necessary to shake things up? This brings us to another feature of the
two opinions-- their relationship to contemporary politics, and, in particular,
to the perhaps the most important feature of that politics--political
polarization. Breyer's opinion in Noel Canning is much less interested than Scalia's in
making constitutional interpretation take account of changing conditions in
constitutional politics. Once again, if you think that living constitutionalism
is about adapting to changed conditions, then Breyer's opinion is much less
living constitutionalist than Scalia's.
In
fact, Breyer's opinion is centrally concerned with preserving the status quo.
It does not treat today's polarized politics as an important consideration. It
is true, Breyer suggests at one point, that presidents may use existing conventions
(now codified in Noel Canning) to do end-runs around the Senate. But he does not
regard this as a particularly worrisome result.
Moreover, if the Senate is worried about end-runs, his opinion allows
the Senate to refuse to adjourn in order to prevent them.
Scalia's
opinion, by contrast, must be understood in the context of the new reality of
party polarization and conflict extension. It responds to a changed political
environment in which the opposition party finds that it disagrees with the
President about almost everything in domestic politics. In this new world,
movement conservatives have come to recognize the constitutional importance of
checking domestic policymaking by presidents, especially liberal Democratic
presidents like Barack Obama. Once political polarization becomes entrenched,
constitutional values of checking and slowing down government regulation become
especially important, especially to people whose constitutional values
generally oppose government regulation. This theme occurs throughout Scalia's
dissent-- he downplays the importance of efficient government to our
constitutional system, arguing that separation of powers properly values
liberty over efficiency. In this context, "liberty" means preventing
presidents from creating new regulations or enforcing existing regulations
through their control of administrative agencies.
Scalia's
focus on liberty as a key constitutional value of separation of powers (i.e.,
the ability of the system to prevent unwise regulation) reflects the political
history that led to the Noel Canning litigation. After President Obama was elected in 2008,
Republicans feared that the economic crisis and Obama’s election would lead to a
resurgence of activist government. Therefore they sought to limit Obama's
ambitions and restrict his attempts at reform. Republicans in the Senate
repeatedly filibustered a number of his appointments, especially to the NLRB
and to the new Consumer Financial Protection Bureau created by Dodd-Frank. Republicans hoped that by preventing
appointments, they could cripple agencies that promoted regulatory policies
they thought were especially bad for the country. (Indeed, Republicans refused
to appoint anyone to the Dodd-Frank consumer protection agency for a time, no
matter how qualified, until Democrats agreed to pass new legislation.)
That
left the possibility of recess appointments to get around Republican
filibusters. Republicans were determined to prevent that from happening, but
they could do little while the Democrats controlled both Houses of Congress.
The Noel Canning litigation arose because of the 2010 elections, which gave
control of the House to the Republicans. The Republican-controlled House
prevented the Democratic- controlled Senate from adjourning for more than three
days, in order to prevent recess appointments. The Senate, also responding to
the new political reality of polarization, abolished the filibuster for
executive branch appointments and lower federal court appointments.
Whether
one agrees with Scalia or not, his opinion is far more attuned to the new
realities of party polarization than Breyer's majority opinion, and therefore it
has a far greater claim to be an attempt to keep the interpretation of the
Constitution in line with changing circumstances. Because of political
polarization and conflict extension, presidents will increasingly be tempted to
use recess appointments as a means of circumventing the other party, whether
the opposition party controls either the Senate or (as in this case,) the
House. In order to prevent these
end-runs from occurring, the Court must adopt an interpretation of the Recess
Appointments Clause that prevents most recess appointments. Although it is couched in the language of
originalism and textualism-- and therefore would seem to be a timeless claim about the correct interpretation of the Constitution at any point in history--it is an adaptation to changed circumstances. But that should hardly be surprising. Self-styled
originalist arguments by legal officials and movement advocates-- no matter how much they may present themselves as timeless truths--are often responses to perceived defects in current
conditions. That is because—although originalist academic theory may be
separated from politics—originalism in
practice is very often tied to reform projects in politics.