Cass R. Sunstein (Harvard Law School) has posted Originalism V. Burkeanism: A Dialogue over Recess (126 Harv. L. Rev. F. 126, 2013) on SSRN. Here is the abstract:
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In its important ruling in Canning v. NLRB, the United States Court of Appeals for the District of Columbia Circuit sharply limited the President’s authority under the Recess Appointments Clause, ruling (1) that intrasession appointments are unlawful and (2) that recess appointments are lawful only if vacancies arise, and do not merely exist, during the recess. These rulings reflect the court’s (contestable) readings of the original understanding of the Recess Appointments Clause. Even if the two readings are correct, they conflict with longstanding practices and understandings on the part of the political branches. To this extent, the debate over the Recess Appointments Clause can be said to reflect a sharp disagreement between originalist and Burkean approaches to constitutional law. A dialogue between the two sides suggests that at least in this context, originalists ought to be prepared to give serious consideration to the Burkean approach, because some of the strongest arguments for originalism are compatible with respect for longstanding practices by the political branches, which can be seen as forms of precedent.
