The construction of original public meaning.

• Author: Balkin, Jack M.
• Position: I. A Theoretical Puzzle-and Six Solutions through IV. Conclusion, with footnotes, p. 71-98 - Response to article by Christina Mulligan and others in this issue, p. 1

1. A THEORETICAL PUZZLE-AND SIX SOLUTIONS

   In January of 2014, lawyers assembled at the Supreme Court to argue NLRB v. Noel Canning. (1) 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." (2) 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 January-until after the Civil War. (3) 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, (4) 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." (5)

   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.

   If this had happened, what would be the original public meaning of Article II, Section 2, Clause 3? Would it be "during the Recess of the Senate," which could--but need not--confine recess appointments to those made between official sessions? Or would it be "while the Senate is not sitting," which could--but need not--empower the President to make intra-session appointments? Or would we conclude that, at least as to this question, there was no single original public meaning? In that case, we would simply note that the participants took different public meanings from the different versions of the text they read, and we would have to rely on other resources to implement the Constitution.

   Remarkable as it may sound, something like this actually happened. Christina Mulligan, Michael Douma, Hans Lind and Brian Quinn (hereinafter MDL&Q) have pointed out that in 1787, the population of Pennsylvania was about a third German-speaking, (6) and a significant percentage of New Yorkers spoke Dutch, "especially in the rural areas around New York City." (7) As a result, MDL&Q explain, in late September 1787, a week after the English version was submitted to the states for ratification, the Pennsylvania Assembly commissioned a German translation for the state's German speakers. It sent out 3,000 English copies and 1,500 German copies "to be distributed throughout th[e] state for the inhabitants thereof." (8) Pro-ratification forces in New York commissioned a Dutch translation in 1788, (9) "presumably printed before voting for convention delegates began on April 29." (10)

   The German version of Article II, Section 2, Clause 3 reads "da der Senat nicht sitzt;" that is, "when the Senate is not sitting," while the Dutch version reads "gedurende de afweezenthyd van de Senaat," or "during the extended absence of the Senate." (11) The German version, and to a lesser extent, the Dutch version, seem compatible with recess appointments when the Senate is adjourned during an official session, if the absence is sufficiently substantial.

   Although Pennsylvania and New York were only two of the original thirteen ratifiers of the Constitution, Pennsylvania's early ratification on December 12, 1787, was widely acknowledged to be crucial to the success of the enterprise. New York ratified on July 26, 1788, shortly after the ninth state, New Hampshire, on June 21st, 1788, and the tenth state, Virginia, on June 25th, 1788. Hence, under Article VII, the Constitution was already guaranteed to come into operation even without New York's assent. Nevertheless, its acceptance was also crucial as a practical matter. Without ratification by New York, then as now a key commercial center of the nation, and situated strategically between New England and the rest of the country, the new union of states would likely flounder.

   For these reasons, the understanding of a significant proportion of the ratifying public in both states cannot easily be disregarded.

   If one is a conscientious originalist, and believes that constitutional interpretation should begin with ascertaining the original public meaning of the text, what is to be done? There are a number of possible solutions.

   First, we might concede that, as to this particular question, there is no original public meaning of Article II, Section 2, Clause 3. More than one version of the text circulated among the ratifying public; and the people whose assent was necessary for ratification in key states were working with different texts. This argument is based on a theory of popular sovereignty. What makes the Constitution law is the consent of the ratifying public--We the People-who give assent to the text presented to them. Because different members of the public read different texts, when the texts differ significantly with respect to a particular question, there is no single original public meaning. Therefore a court today should treat the text as irreducibly ambiguous as to this particular question and turn to constitutional construction, resolving the controversy based on other modalities of constitutional argument, including precedent, inter-branch convention, structure, and consequences. This is perhaps closest to what the majority actually did in Noel Canning; it argued that the English text was ambiguous and then resolved the case based on other considerations. (12)

   Second, we might draw on analogies to countries that have more than one official language in which laws and judicial opinions are written, or to treaties between countries written in multiple languages. Accordingly, we might compare the English, German, and Dutch versions to see if they shed light on the underlying goals of the law, with the hopes of producing a single compromise version that we will henceforth treat as the original public meaning. (13) This approach treats the German and Dutch versions as co-equal with the English printed version, at least in Pennsylvania and New York, even though they were not officially enrolled as part of U.S. law. The justification for this approach would also be a theory of popular sovereignty. Significant parts of We the People in crucial states voted for adoption the Constitution based on these versions. These versions are part of the ground of authority for making the Constitution law. Hence we must consider all of them in determining the original public meaning.

   Third, we might simply ignore any differences between the texts and focus solely on the English version because most speakers who participated in the ratification debates were English speakers, because the German and Dutch versions affected the ratification of only two states out of thirteen, and because the Philadelphia Convention does not appear to have specifically authorized or produced any official translations when it distributed the proposed Constitution to the states.

   To be sure, the German text was commissioned by the Pennsylvania Assembly. (14) If the procedural niceties of ratification were left up to individual states, the German text might arguably qualify as an official version within Pennsylvania. The New York translation, however, was commissioned by proponents of ratification, rather than by the New York Legislature. (15) In any case, we might justify looking only to the English version based on the need to converge on a single official text, and the fact that thirteen states eventually ratified, far more than the nine required by Article VII.

   Fourth, we might use the German and Dutch translations as evidence of or as a commentary on what the real or official text-that is, the English text--meant at the time to English speakers. This is closest to MDL&Q's general approach. They treat the English text as the sole official text of the law and view the German and Dutch translations as commentaries on the real Constitution--the printed English version. (16) This approach makes these versions, in theory, no different than a particularly comprehensive pamphlet or newspaper article on what the proposed constitution said. (17) Indeed, it puts the translations on the same footing as the celebrated commentaries in The Federalist, which paraphrased and expounded the Constitution's meaning to New Yorkers. It follows then, that the situation of German and Dutch speakers who read only the translated versions are like the situation of English speakers who never actually read the text but who supported or opposed the Constitution based on what they heard from their neighbors or read in the newspapers.

   To the extent that the German and Dutch translations are incorrect, or misguided, those commentaries are simply mistakes. (18) Along the same lines, on some issues even The Federalist itself may be mistaken, although because it has amassed such symbolic and cultural authority over the years, many people may be loath to disregard it. Perhaps if the German and Dutch translations had become more widely known and celebrated (or if substantial numbers of Americans spoke German and Dutch today), their authority as commentaries...