The Importance of “the”

Fans of interpretation — especially constitutional construction — will enjoy the extended analysis in “The Recess Appointments Clause (Part 1)” by Neal Goldfarb on his blog LAWnLinguistics (Not about the linguistics of lawns). Much in the D.C. Circuit appellate decision in Noel Canning v. National Labor Relations Board hinges on the “the” found in the Recess Appointments clause in Article Two of the US Constitution:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. [emphasis added]

Crudely put, the issue is whether the power is operative during the breaks Congress takes during a session or only during recesses between sessions.

What fascinates me here is the approach the court takes, which is to load most everything on the meaning of the word “the” and to seek that meaning in an originalist approach; that is, to ask what the framers of the US Constitution understood by the word “the.” Their peculiar, not to say bizarre, starting point is the definition of the word “the” found in Samuel Johnson’s 1755 dictionary. I have never understood how a court can resort to a dictionary to resolve an issue; to resort to one that is 250 years old and written by an eccentric is, to me, absurd. Beyond that, I’m always flummoxed by the approach to construction that would have us live our lives according to the imagined dictates of mummified old men, the living undead as it were.

Goldfarb takes the decision apart, on the court’s own terms to start with, and then with a broader analysis. As I say, an enjoyable, sustained critique, regardless of whether you share my opinion on constitutional construction. Worth reading.

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