15 November 2003

Text Without Context as Constitutional "Evidence"
I am afraid that this time Professor Solum has gone much too far in his citation to evidence that is, by its own terms, irrelevant in support of a position based upon a dubious conception of textualism and originalism. Solum's point—a point which has some abstract attraction—is that the Senate's internal filibuster rule should not and cannot be used to overcome its Constitutional duty to provide "advice and consent" to the President on appointments to Federal office. Regardless of whether one agrees with this conclusion, the "evidence" provided does not support it.

   Consider, to start with, the phrase "advice and consent." Nobody really knows what it means. Under Marshall's edict that "it is a Constitution that we are expounding," I do not believe that it can be given an explicit meaning—and Marshall's edict is, ironically enough, the only form of "originalism" that is supported both internally and externally in the Constitution and the surrounding debates without much dissent. The point of the Constitution is that it is vague in most respects and therefore can be adapted to unforeseen conditions without radical change to its text. In any event, as I noted a few days back, any reasonable interpretation of the phrase "advice and consent" requires two-way communication. Unfortunately, the recent efforts to do away with the "blue slip" system are merely a symptom of the failure of the modern polity to actually communicate across party lines.

   To my mind, this is where Solum goes most seriously astray. Washington was among the most vocal opponents of partisan politics, both prior to and while he was in office. Washington's letter quoted by Solum contains a critical implicit assumption: that neither policy nor structure has become a captive of partisanship. (Washington was almost certainly thinking of this in July through September of 1789, based on other writings.) So, then, does Washington's statement have any value as evidence of intent when it concerns circumstances that have arisen that are outside its implicit boundary conditions? Even if one accepts "intent" or "originalism" as the primary, or even tie-breaking, consideration in interpreting a Constitutional text, it cannot. In this context, it is not even persuasive.

   Perhaps Solum's ultimate conclusion—that "advice and consent" somehow requires the Senate to give an up-or-down vote on every candidate within a reasonable time, and that failure to do so somehow gives the President justification to evade the Senate's failure to give consent—reflects the reality of the need to govern. Perhaps it is even sound policy. However, such a conclusion is neither compelled by nor even particularly advanced by the argument and evidence presented. We need not go down some slippery slope to requiring the Senate to approve Bozo the Clown (or G. Harrold Carswell) if nominated as Chief Justice of the Supreme Court of the United States by the President to see that at least the argument fails to persuade.

   The irony that this is starting to sound a lot like the "case or controversy" argument has not escaped me. For now, I am sticking to the traditional interpretation of that phrase, even though I am not at all certain that the traditional interpretation is internally consistent or consistent with the concept of Attorney General contemporaneous to the 18th Century. But that only reinforces my point: reliance on single pieces of evidence, wrenched from their immediate and overall context, to support a non-self-evident interpretation outside the conception of the provider of the evidence is not persuasive. <SARCASM> Perhaps that itself only demonstrates that my time before law school was spent largely on literary interpretation and interpretation of political documents, statements, and actions originating in other cultures, and that therefore I ought not be trusted to interpret my own political culture. </SARCASM> Even though, as an officer of the court (as are all lawyers), I have a duty to do so.