I’m  bit leery of wading into this debate, as unlike some of my co-bloggers, I’m not a scholar of originalism.  Neverthelss, I think precedent is a bigger problem for originalism than co-blogger Will Baude acknowledges below, though for different reasons than Eric Posner discusses.

The problem is that when interpreting a clause of the Constitution, originalists typically look to the “original meaning” of that clause. But the Constitution wasn’t adopted clause-by-clause, and sometimes non-originalist precedents on other clauses mean that interpreting a clause at issue according to its original meaning will actually move us further from the balance the original Constitution tried to strike.  

For example, because of modern precedent essentially doing away with the non-delegation doctrine (i.e., doing away with the doctrine that Congress can’t delegate vast power to the executive branch), administrative agencies wield what in effect is tremendous lawmaking authority, even though the executive branch is supposed to only execute, not make, law. Some would say that this role for agencies is inevitable given the complexity of modern government. Inevitable or not, Congress tried to claw back some of its authority by increasingly using the so-called legislative veto, a mechanism that permits Congress to invalidate specific agency actions by a majority vote of one or both houses, without the president’s signature.

From a clause-bound originalist perspective interpreting the presentment clause, the legislative veto is pretty clearly unconstitutional (and the Supreme Court has so held). But what if the Court was instead trying to bring us closer to the Constitution’s original scheme for the separation of powers? Permitting the legislative veto at least under some circumstance would arguably actually have been truer to the original Constitution vision of separation of powers, by restoring final authority over lawmaking to Congress in some instances.

Admittedly, Congress could also resolve the problem by passing a law stating that nothing in the Federal Register has legal effect until Congress votes to approve it, and the president signs the legislation. The consensus seems to be that such a rule would cause utter chaos.

Which raises the related issue of what happens when the scope and structure of modern government has in practice changed the scope of a power. Do we still interpret the clause granting that power according to its original meaning, or do we take the changes into account?

Consider the president’s commander-in-chief power. Let’s say that an originalist concludes, as some have, that the president may commit military forces to armed conflict at will, without the approval of or even consultation with Congress. Congress’s authority, in short, is limited to formal declarations of war, and Congress cannot proactively limit the president’s power.

The problem is that under the original scheme of things, the president’s authority was still quite limited, because Congress’ “power of the purse” put significant constraints on the president. Let’s say President George Washington had decided to break the peace treaty with Great Britain and gather forces for a war to conquer Canada. Where exactly would he have gotten the money to recruit a sufficiently large army with sufficient provisions without Congressional approval? So in practice, major military endeavors, especially offensive ones, needed Congress’ assent.

By contrast, today we have a standing army of well over a million soldiers, with a “defense” budget in the hundreds of billions of dollars. The president has enough soldiers at his command, and more than enough discretionary funds, that he could easily get the U.S. involved in a full-scale war without Congressional approval (as presidents have indeed done). When interpreting the scope of the commander-in-chief power, does it really make sense to ignore the fact that in 1789, the president was, and was expected to be, ultimately beholden to Congress before he could start a major military confrontation, but isn’t today? And shouldn’t that make a difference when deciding whether, say, the War Powers Act is constitutional?

H/t to Bruce Ackerman of Yale for first alerting me to the clause-by-clause problem via a review of Robert Bork’s The Tempting of America many years ago.