Let's Stop Treating the Constitution Like the Da Vinci Code

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http://www.theatlantic.com/national/archive/2013/04/lets-stop-treating-the-constitution-like-the-da-vinci-code/274946/



When "originalism" came on the scene in the 1980s, it was promoted as a means of keeping judges from writing their "personal views" into law.

If that was its intent, the "originalist" movement is an abject failure. As a field of scholarly and historical study, originalism -- the study of the historical background of the framing of a constitutional provision -- is valuable and bracing. But most judges are neither historians nor scholars, and for judges, "originalism" can be a powerful tool for attributing contemporary policy views to the Framers.

This can be illustrated neatly by the D.C. Circuit's decision in Noel Canning v. National Labor Relations Board, which destroyed the federal agency charged with safeguarding the rights of Americans to organize labor unions and bargain with their employers.

The panel held that, because the majority of members of the Board had been "recess appointments" named during a Congress rather than between Congresses, they were not validly appointed.

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