At the Harvard Law Review blog, Elias Neibart: Methodological Convergence in Community Financial Services. From the introduction:
My colleague, Thomas E. Nielsen, just published a thought-provoking post detailing some of the methodological approaches at play in CFPB v. Community Financial Services Association of America. [Ed.: Noted here.] Nielsen insists that the case exposes “methodological divisions” among the Justices. But that’s not quite right. A closer look reveals their shared focus on a single interpretive question: What was the original meaning of the constitutional text? To be sure, the Justices discussed history, settled practice, and “novelty.” But these considerations were means or gloss — not ends. They were methodological tools — not methodological objectives. And, with respect to the latter, the Justices seemed to agree. Though they discussed different tools, they each accepted the notion that if the original meaning of the text were clear, their inquiry would be over. In this respect, then, Nielsen overlooks the methodological convergence of the Court. Indeed, Community Financial Services suggests that we are all (still) originalists. In fact, we might all be public meaning originalists.
Take Justice Thomas’s majority opinion. Early on, he made the Court’s mission clear: its “concern [was] principally with the meaning of the word ‘appropriation.’” But not just any meaning. Justice Thomas sought to uncover the meaning of “appropriation” “[a]t the time the Constitution was ratified.” To do so, Justice Thomas unpacked his originalist tool belt.
First, he looked at founding–era dictionaries to discern the “ordinary usage” of the word “appropriation” at the time of ratification. Then, he turned to “[p]re-founding” English and colonial history, again with the purpose of understanding how the word was understood at the time of the founding. Justice Thomas’s invocation of post-ratification history shared a similar objective. As he noted, “[t]he practice of the First Congress . . . provides contemporaneous and weighty evidence of the Constitution’s meaning.” Thus, both pre-ratification history and soon-after-ratification tradition helped Justice Thomas discern the meaning of the written word.
That’s why Nielsen’s contention that “Justice Thomas’s analysis may be flawed in the separation-of-powers context” is puzzling. Even if Nielsen is correct that the “concept of the separation of powers lacked a fixed meaning at the time of the Founding,” it’s not clear why that would undermine Justice Thomas’s argument. Justice Thomas was not interpreting what the “separation of powers” meant. Instead, he was discerning the meaning of the word “appropriation.” Indeed, in the latter half of his opinion, he seemed to reject the Respondents’ separation-of-powers argument. He did so because they offered no “theory” for why the Appropriations Clause “require[d] more” than its plain meaning.
In other words, Justice Thomas was answering an interpretive question. He was not, as Nielsen contends, answering a “separation-of-powers question[].” To be sure, Community Financial Services implicated separation-of-powers concerns. But for Justice Thomas, those concerns were beside the point if they did not bear on constitutional meaning. Nielsen’s criticism of Justice Thomas misses the mark, then, because he frames the case as a dispute over “nebulous separation-of-powers questions.” But it wasn’t. It was a case about the words on the page.
I agree with this description of Thomas' opinion and that it reflects an appropriate textualist/originalist approach (see my thoughts here).
The post continues:
However, with that framing in mind, Nielsen stakes out his preferred method of discerning constitutional meaning. He contends that “separation-of-powers questions were typically worked out by the political branches over time, resulting in the gradual development of norms with no judicial involvement.” So, he continues, “post-ratification courses of conduct by the political branches should guide” our “inquir[ies]” into “separation-of-powers disputes.” And Nielsen views Justice Kagan’s concurrence as an adoption of that view. But that might not be right. …
Posted at 6:04 AM