Cass Sunstein Debates Himself On Originalism and Burkeanism

March 12th, 2013

I previously blogged about the tension between originalism and stare decisis in the Canning recess appointment case from the D.C. Circuit. Cass Sunstein raises a similar point in the Harvard Law Review Online, in an essay titled Originalism v. Burkeanism: A Dialogue Over Recess.

Some judges are originalists. Other judges are Burkeans, in the sense that they believe that longstanding practices and understandings deserve a high degree of deference. Adjudicative Burkeans stress respect for precedent and the importance of judicial understandings as they evolve over time. Political Burkeans attend to the understandings of Congress and the executive branch. Of course some judges reject both originalism and Burkeanism.

In Canning v. NLRB, the court of appeals, unambiguously embracing originalism, issued two far-reaching rulings with respect to the Recess Appointments Clause. The first is that the Recess Appointments Clause authorizes the President to make appointments only during intersession recesses (and not during intrasession recesses). The second is that the Clause authorizes the President to make recess appointments only if the vacancy actually “arises” during the recess, and not merely because the vacancy “exists” during the recess. There is an arguable conflict between the original understanding and the longstanding interpretations of the political branches

In Back to the Future of Originalism, I contend that at the Supreme Court, originalism seems to be employed most strongly where there are “open fields” without precedent. That, in cases where there is not much precedent, the Court is more willing to use originalism–Heller may be the best example. Because there were no precedents in the way, both the majority and dissent offered competing versions of the Second Amendment’s original understand.

Though, in cases where there is a lot of precedent (defined either as judicial precedents, or long-standing practices), the Court is less willing to use history to reverse those long-standing precedents. A good example of this phenomenon is McDonald v. Chicago, where the Court refused to reverse Slaughter-House, even though nearly everyone agrees that it incorrectly interpreted the Privileges or Immunities Clause. Justice Scalia said as much when he mocked it as the “darling of the professoriate.” Justice Sotomayor asked during oral arguments if the grand jury indictment clause would now have to be incorporated. Despite the well-agreed-upon original meaning of the Privileges or Immunities, the 140 years of precedent would not be reversed.

There was also the issue of conservatives opening up a veritable Pandora’s Box for protection of unenumerated rights, but that was likely an independently sufficient reason to leave Slaughter-House intact–but this is why I recommend importing the Washington v. Glucksberg test, that looked to whether a right was “deeply rooted in our Nation’s history and traditions.” It would have the proper respect for long-standing precedents, while bringing the original meaning of the Constitution back into the forefront.

However, Sentelle’s opinion was not by any stretch of the imagination an “open field.” In fact, this was quite cluttered–one may even say, way down deep in this political “thicket.” I wonder whether originalism was appropriate here. I also wonder whether the Supreme Court will be so inclined to use an originalist understanding to reverse two centuries of practice. Will Justice Scalia bite, or will he pull a McDonald?

I need to start submitting my blog posts to online journals. So much easier.