The Construction of Original Public Meaning

Abstract

In January of 2014, lawyers assembled at the Supreme Court to argue NLRB v. Noel Canning. One of the questions before the Justices was whether the President could only make recess appointments between official sessions of the Senate (intersession recesses), or could also make appointments within an official session when the Senate had adjourned for some substantial period of time (intra-session recesses). As the case moved through the courts, lawyers debated the original meaning of Article II, Section 2, Clause 3, which gives the President power "to fill up all Vacancies that may happen during the Recess of the Senate." Did "the Recess" refer to the single recess between official sessions, or did it refer to any extended period of time in which the Senate was not sitting? Because transportation between home states and Washington D.C. was quite difficult for many Senators in the early Republic, the Senate did not take any significant intra-session recesses-other than for the period between Christmas and the beginning of Januaryuntil after the Civil War. Therefore the meaning of its early practice was ambiguous. "[T]he Recess" could refer to a single event that occurred only between official sessions, as Justice Scalia insisted, or it could refer to an instance of a larger class of similar things or events, as in the sentence "the elephant is the largest land mammal." Suppose, however, that just before the oral argument, it had been discovered that multiple versions of the Constitution had been distributed in September 1787 in states whose assent was crucial to its eventual adoption-for example, Pennsylvania. Some of these texts said, "during the Recess of the Senate." Other texts said "while the Senate is not sitting." Amazingly, however, no one noticed the discrepancy during the ratification debates, and the Constitution was eventually adopted.