Thursday, August 20, 2015

Pro-Executive Power Scholarship as a Road Test of Original Public Meaning Theory

Stephen Griffin

I want to thank Mark Graber for his generous comments about my forthcoming book and note that after this post, I’ll take a brief break to do a bit of promotion for Broken Trust: Dysfunctional Government and Constitutional Reform.  I’ll be speaking about the book at a related Sept. 4 panel on constitutional amendment and constitutional change (with John Vile, Sandy Levinson, Richard Hasen, and Melissa Schwartzberg) at APSA in San Francisco.  After I return to the topic of the new originalism and living constitutionalism, I will turn to the latter in order to pose some challenges for the most influential forms of this perspective.

But to continue for now on the new originalism.

It is sometimes said that the new originalism is indeed “new,” in the sense of still being built out and road tested (I agree that the interpretation/construction distinction still has the wrapping on).  Perhaps so and it would certainly be unfair to judge the progress of the theory by dating it to Justice Scalia’s 1986 move to original public meaning (OPM).  For his part, Scalia has always been better about giving statutory examples to back up the cogency of OPM theory rather than constitutional examples (and his recent book with Bryan Garner, Reading Law is no exception).  But if we consider the field of executive power scholarship since the early 1990s, it turns out that OPM has been around for almost a quarter of a century, certainly enough time by anyone’s standards to judge it by the quality of the specific interpretations (or constructions) of the provisions of Article II (and the “declare war” clause of Article I) that have been offered under its banner.  I examined this scholarship in the course of researching my chapter in the OUP Handbook and saw a number of problems that illustrate the arguments made in earlier posts that OPM is methodologically flawed from a historicist point of view.  In addition, I reviewed the war powers work of John Yoo, who uses OPM theory, in my book Long Wars and the Constitution and came to the same conclusion.  I’m summarizing rather than developing those concerns here.  I should also say that I haven’t yet read Sai Prakash’s recently published book Imperial from the Beginning, although of course I am familiar with his earlier work.

If you adhere to OPM theory and are interested in the meaning of Article II, it’s your task to determine the “original” and “public” meaning of terms like “executive power.”  How would you do this?  By of course finding evidence concerning the semantic meaning “executive power” (or perhaps taking on “executive” then “power” separately as in Heller) had for the “public” that read the Constitution, perhaps using the reasonable eighteenth-century person standard.  I put such terms in scare quotes because the public that existed in 1787-88 as the Constitution was debated and ratified is not the same public that existed in the American colonies of the seventeenth or mid-eighteenth century.  Nonetheless, OPM executive power scholarship begins in those earlier periods.  This is partly because OPM scholars see Locke’s writings on government and Blackstone’s circa-1760s treatise as providing reliable evidence on the OPM of executive power, an OPM which is then presumed to carry forward into the critical period of the 1780s, unless there is specific contrary evidence.  That’s the general thrust of this scholarship.  Yoo in particular has a tendency to fix the meaning of executive power (along with “declare war”) in mid-eighteenth century England and then constructs an entire argument around the assumption that it changed not at all through the Revolutionary War, the Articles of Confederation, the critical period of the 1780s and the writing and ratification of the Constitution.  This suggests that OPM methodology runs into trouble unless it can summon a stable base of meanings that existed prior to the formation of the Constitution itself.  Fine, but why should this pose a problem?

Because the leading scholarship on the formation of the Constitution, including the work of historians like Bernard Bailyn, Gordon Wood, Jack Greene, Jack Rakove and many others showed that the critical period in effect changed the baseline for understanding many of the words and phrases in the Constitution, especially once we take into consideration doctrines such as federalism and separation of powers to which I referred in earlier posts.  Here the OPM scholarship of the 1990s is especially difficult to understand because it appeared that these legal scholars were developing a parallel historiography, often citing each other for authority (which is fine) without taking into account the prior seminal work of Bailyn, Wood and many other historians (not fine).  Martin Flaherty and other legal scholars have of course made the same argument.  And that’s the reason I felt justified in making the same point in my OUP Handbook chapter.

Here I will note parenthetically that once again I am making a methodological point and so I do not necessarily disagree with all of the specific interpretive arguments of pro-executive power scholars.  In particular, reliable scholars like Mike Ramsey have made powerful arguments that the vesting clause of Article II confers substantive and substantial power on the President.  But this argument is persuasive to the extent it is based in the logic of and inferences from the bare text and structure of the Constitution itself, not evidence about what the OPM of “executive power” was circa 1787.  Doing OPM cannot be a matter of taking a general survey of people that no longer exist.  It is more like taking a glacial core sample of a pretty specialized set of primary sources without considering whether the sample is relevant to or representative of the surrounding rock.  Why?  Because the relevant inquiry for legal purposes is about a particular document with a specialized design, not what the public meaning was of certain words and phrases in the eighteenth century generally.  To exaggerate to make a point, it is more fruitful to view the entire Constitution as a term of art than it is to view it as being assembled by its authors from nonexistent comprehensive eighteenth century American dictionaries.

Speaking generally, when you really look closely at OPM executive power scholarship, what you see is a set of presumptions being used to bulk up rather thin evidence, not a robust assemblage of eighteenth-century meanings.  The reason is not that there is a lack of the right kind of evidence about executive power.  There’s plenty of evidence about the meaning of executive power…in England.  In the colonies, it gets more complicated.  But my main point is that the presumptions are doing nearly all the work, something that is especially on display in Yoo’s work as I argue in Long Wars and the Constitution.  In other words, these scholars don’t really have evidence of what the OPM of executive power was when the Constitution was sent to the several states.  Not their fault, no one does!  In order to save an inherently flawed methodology, they are appropriating OPM evidence from an earlier period (and another country!) and shoving it into the framework of the writing and ratification of the Constitution.  This is why it is especially misleading to exclude, as these scholars sometimes do, relevant evidence from the Federal Convention.  Again speaking generally, excluding evidence from the Federal Convention is adventitious for pro-executive power scholars, especially with respect to war powers.  But it’s never a good idea to exclude relevant historical evidence, especially when the people at Philadelphia also participated actively in the ratifying conventions.

All of this is not by way of establishing that the semantic or, for that matter, “meaning as purpose” meaning of phrases like “executive power” was somehow “living,” fluid, or impossible to determine.  I am arguing rather that the OPM approach has a very specific take on what counts as relevant historical evidence that happens to be unsuited to the task of finding constitutional meaning amid the rapidly changing circumstances of the 1780s.  Historians already knew this in a sense – why didn’t leading executive power scholars in the law schools pay more attention?  In reviewing pro-executive power scholarship for my OUP Handbook chapter, this was hard for me to understand.  As you can no doubt tell by now.

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