Paul Nevins

Paul Nevins
Boston, Massachusetts, USA
October 29
Paul Nevins is the author of "The Politics of Selfishness: How John Locke’s Legacy Is Paralyzing America "(Greenwood /Praeger/ABC-CLIO). The central thesis of this important and unconventional work is that the United States has begun to experience a number of profound, interrelated problems that are caused, both directly and indirectly, by the country's dogmatic and often unconscious adherence, collectively as a political culture and individually as Americans, to the political philosophy of John Locke. That ideology, which is the bedrock upon which the American liberal democracy has been founded, asserts that human beings are by nature solitary, aggrandizing individuals. Hence, preoccupation with the self in all of its manifestations and attributes - as opposed to the whole, the public interest - has become the primary focus by which political, economic and societal decisions are made. Consequently, the preferred form of social and political relationships with others, including the state as the organized expression of political society, is solely contractual and is designed primarily to protect private property in all of its forms. "The Politics of Selfishness" provides compelling historic and contemporary evidence that U.S. institutions, at all levels, are failing because of the country's uncritical embrace of the anti-social individualism which is John Locke’s legacy. Paul Nevins has been a trial attorney in private practice since 1982. He concentrates in public and private sector employment law and litigation, related civil rights and constitutional law claims, and contract claims. Prior to becoming a lawyer, Paul Nevins taught in the Boston Public Schools. While teaching, Mr. Nevins served as a member of the Executive Board of the Boston Teachers Union, Local 66, AFT/AFL-CIO. Paul Nevins served as a conscript in the United States Army from 1968 to 1970. In 1969, he was a founder and the first chairman of GIs for Peace at Fort Bliss, Texas.This was the first organization of active duty soldiers who publicly opposed the Vietnam War. Mr. Nevins received an A.B. Degree from Suffolk University, a Master of Arts Degree from New York University, and a Juris Doctor Degree from Suffolk University Law School. He lives and works in Boston.


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JANUARY 31, 2013 3:25PM

Is "Original Intent" A Religious Concept?

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                        cross-posted at

      During the 112th Congress, which was in existence between January 3, 2011 and January 3, 2013, the U.S. Senate, in the face of threatened Republican filibusters, declined to confirm more than 160 nominations submitted by President Obama. Many of the persons whom the Senate declined to confirm were nominated by the President to serve on a wide variety of essential government regulatory agencies, as well as proposed appointments to various government agencies that are directly involved in the promotion of science, the arts, health and the environment. Of the 180 nominees whose names were referred to the Senate Judiciary Committee - the overwhelming majority of whom were proposed federal district and appellate judges - the Senate refused to confirm 49 of the proposed appointments, and another 4 names were withdrawn.


    In response to the institutional inertia of the Senate, President Obama made three “recess” appointments to the National Labor Relations Board between January 3 and January 23, 2012, at a time when the Senate was not formally in session, so that a quorum of the five-member board could be created to adjudicate labor disputes.   

    In a subsequent challenge to President Obama’s action, the Court of  Appeals for the District of Columbia, in Canning v. NLRB, No. 12-1115 (D.C. App.Ct., January 25, 2013), has invalidated those “recess" appointments and called into question the constitutionality of all such past appointments. The court’s sweeping decision raises of specter of a kind of Orwellian judicial  “newspeak” since the panel’s holding was predicated entirely upon the narrow understanding that the three judges gave to the meaning of one noun and a verb as those two words were used in the eighteenth century. How severely that court’s decision, if not reversed, will further impair the ability of the United States government to function in the twenty-first century remains an open question.

    The case arose after Noel Canning, a bottler for Pepsi Cola, challenged an order by the National Relations Labor Board. After an administrative hearing, the NLRB cited it for an unfair labor practice and directed it to honor the terms of a Collective Bargaining Agreement that it had negotiated with the Teamsters Union, but subsequently declined to implement.

     In its appeal from the decision of the NLRB to the Court of Appeals, Canning argued that the Board did not properly follow applicable contract law in determining that an agreement had been reached and that, as a consequence, the finding of unfair labor practice was erroneous. The three judge panel rejected Canning’s argument and found, based upon a “sufficiency of the evidence “ standard, that the decision of the administrative judge below was correct and that the  terms of the collective bargaining agreement were enforceable, as the NLRB had correctly found.

         But Canning also argued for the first time in its appeal that the NLRB lacked the authority to issue any orders “ for want of a quorum, as three members of the five-member Board were never validly appointed because they took office under putative recess appointments which were made when the Senate was not in Recess.” Canning, at 3. Further, Canning asserted that the “vacancies the three members purportedly filled did not ‘happen during the Recess of the Senate,’ as required for recess appointments by the Constitution. U.S. Const. Art II,  §2, cl.3." Canning, at 3, 4.

     In an unabashed display of judicial activism, the three judges on the panel (all of whom were appointed by Republican Presidents and have established track-record as right-wing jurists), David Sennelle, Karen Henderson and Thomas Griffith, agreed with Canning. The judges denied that the three recess appointments that President Obama made to National Labor Relations Board were valid because they found that the Senate was not actually in recess, despite the fact that, during the interval  between January 3, 2012 and January 23, 2012, almost all of the Senators were absent from Washington, and only pro forma sessions were convened  by one Senator every three business days.

    In its decision, the Court of Appeals noted that “...there is a serious argument to be made against our having jurisdiction over the constitutional issues. Section 10(e) of the NLRA, governing judicial review of the Board’s judgments and petitions for enforcement, provides: ‘No objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.’ 29 U.S.C. § 160(e). The record reflects no attempt by petitioner to raise the threshold issues related to the recess appointments before the Board. Our first question, then, is whether this failure to urge the objection before the Board comes within the exception for ‘extraordinary circumstances.’ Canning, at 10.

    Not unexpectedly, the three judge panel answered that question in the affirmative, given their well-known personal penchants for result-oriented adjudication: “We hold that it does,” notwithstanding the fact that“We acknowledge that no governing precedent directly addresses this question.” Canning, at 10. 

    Equally disturbing, the three judge panel expressly rejected  contrary decisions reached by other federal courts, including Evans v. Stephens, 387 F. 3d 1220 (11th Cir.,2004). Those earlier decisions affirmed the constitutional validity of presidential recess appointments.  

    The appeals court also chose to ignore a long-standing principle that counseled for judicial restraint when ruling upon constitutional issues: “The Judicial Branch is the controlling interpreter of how the Constitution applies. But the President, in his capacity as chief executive of this country, is also sworn to uphold the Constitution. And when the President is acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional. See United States v. Allocco, 305 F.2d 704, 713 (2d Cir.1962)  (Recess Appointments Clause case); see also U.S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974) (observing ‘In the performance of assigned constitutional duties each branch of the  Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.’). To be sure, the presumption is a rebuttable one; but the burden is on the challengers to overcome it with their arguments and to persuade us to the contrary. Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough. We are not persuaded that the President acted beyond his authority in this case: both the words of the Constitution and the history of the nation support the President's authority” Evans, at 1222.
    In Canning, the appeals court, after invoking the legal fiction of “original intent,” insisted that there was only one possible meaning to the noun “Recess” as that word appears in  Article II,  §2, cl.3 of the Constitution: “It is this difference between the word choice ‘recess’ and ‘the Recess’ that first draws our attention. When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as now, the word ‘the’ was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Languag0 2041 (1755)(defining ‘the’ as an ‘article noting a particular thing’ (emphasis added)). Unlike ‘a’ or ‘an,’ that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’ This is not an insignificant distinction. In the end it  makes all the difference.” Canning, at 17.
     Further, the court opined, “Six times the Constitution uses some form of the verb ‘adjourn’ or the noun ‘adjournment’ to refer to breaks in the proceedings of one or both Houses of Congress. Twice, it uses the term ‘ the Recess’: once in the Recess Appointments Clause and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only did the Framers use a different word, but none of the ‘adjournment’ usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.” Canning, at 17.

     As a matter of simple logic, the court argued that, “The structure of the Clause is to the same effect. The Clause sets a time limit on recess appointments by providing that those commissions shall expire ‘at the End of their [the Senate’s] next Session.’ Again, the Framers have created a dichotomy. The appointment may be made in ‘the Recess,’ but it ends at the end of the next ‘Session.’ The natural interpretation of the Clause is that the Constitution is noting a difference between ‘the Recess’ and the ‘Session.’ Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in ‘the Recess.’” Canning, at 17-18.

      The three judges also insisted that, at the time the Constitution was drafted 1787, there was only one possible definition of the meaning of the noun “Recess”as modified by a definite article, “the,” and that they knew, for certain, the precise meaning that the Founders intended.  The court thus engaged in a feat of legerdemain and disregarded all contrary definitions of  “Recess’ that contemporary dictionaries showed the Founders would have also understood the noun to mean. For example, the Evans Court noted that “The dictionary definitions that have been called to our attention (or that we have found) did not, for example, speak of a minimum time. See, e.g., A Dictionary of the English Language (1755) (reprinted 1967) (defining ‘recess’ as ‘retirement; retreat; withdrawing; secession’ or ‘remission and suspension of any procedure’). And the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause.” Evans, at 1224.

    Nevertheless, the D.C. Court of Appeals concluded: “In short, we hold that ‘the Recess’ is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec.S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated. See 29 U.S.C. § 153(b); New Process Steel, 130 S. Ct. at 2644–45.” Canning, at 30.

    After the panel successfully imposed a judicial imprimatur upon its own definition of the  noun “Recess,” the three judges next turned their attention to the meaning of the verb “happen” as that verb appears in the recess appointments provision. “ Upon a simple reading of the language itself, we conclude that the word ‘happen”’could not logically have encompassed any vacancies that happened to exist during ‘the Recess.’” Canning, at 31.

    “For our logical analysis of the language with respect to the meaning of ‘happen’ to be controlling, we must establish that it is consistent with the understanding of the word contemporaneous with the ratification. Dictionaries at the time of the Constitution defined ‘happen’ as ‘[t]o fall out; to chance; to come to pass.’1 Johnson, supra, at 965; see also Evans, 387 F.3d at 1230 & n.4 (Barkett, J., dissenting) (surveying a variety of eighteenth-century dictionaries and concluding that they all defined ‘happen’ similarly). A vacancy happens, or ‘come[s] to pass,’ only when it first arises, demonstrating that the Recess Appointments Clause requires that the relevant vacancy arise during the recess. The term ‘happen’ connotes an event taking place — an action — and it would be plainly incorrect to say that an event happened during some period of time when in fact it happened before that time.” Canning, at 31.

    Hence, the court concluded, “In light of the extensive evidence that the original public meaning of ‘happen’ was ‘arise,’ we hold that the President may only make recess appointments to fill vacancies that arise during the recess.”  Canning, at 39.

      Despite its assurance that the verb “happen” could only be understood as a synonym for the  verb “arise,” the D.C. Court of Appeals committed an assault and battery upon the Englsih language as it intentionally chose to disregard other well-established 18th century understandings of the verb “happen.” For example, the NLRB and the Department of Justice, in their reply brief, emphasized that  “As explained almost hundred years ago, the term ‘happen’’does not undisputedly mean, as the Company suggests, ‘happen to occur’; it “may mean, also . . .‘happen to exist.’” 1 Op. Att’y Gen. 631, 632 (1823). When ‘determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning,’ courts look to “[l]ong settled and established practice” as a “consideration of great weight in a proper interpretation” of the Constitution’s text. The Pocket Veto Case, 279 U.S. at 688-90 (internal quotation marks omitted).”(NLRB’s Reply Brief, at 66)        

    The three judges in this case, despite their claim of fidelity to the contemporary meaning of words, also ignored the etymology of the verb happen: “c.1300, ‘to come to pass, occur,’ originally ‘occur by hap, to have the (good or bad) fortune (to do, be, etc.);’ see hap (n.). Replaced Old English gelimpan, gesceon, and Middle English befall. In Middle English fel it hap meant ‘it happened.’ Related: Happened; happening.” OnLine Etymology Dictionary.

    The pronunciamentos of the three appeals court judges regarding the precise meaning of words are little different from the entreaties of Christian fundamentalist preachers who insist upon a literal interpretation of the bible. The judges’ convictions that the precise and unambiguous meaning of words in the text of the constitution -as they were understood by the Founders at the time the document was drafted - must alone control, and that all ambiguities, inferences and subsequent evolutions in the meaning of words must be disregarded,  is a theological, rather an a legal proposition.

     As applied, the judicial doctrine of “original intent” imposes the dead hand of the past upon the present; reduces the constitution to a desiccated, no longer relevant docment; and perverts constitutional analysis into an exercise in exegesis.  

    Toward  the end of its decision, the panel piously invoked the words of Chief Justice John Marshall in Marbury v. Madison: “As we recalled in our analysis of the first issue, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.’ Marbury, 5 U.S. (1 Cranch) at 177.” Canning, at 37. 

    Ironically, the advocates of strict construction and constitutional literalism fail to comprehend that their fidelity to the doctrine of original intent may also be the cause of their undoing. In their zeal to find new tools to diminish the ability of the government to act on behalf of the public interest, they overlook one obvious but fatal flaw in their view of what the Constitution explicitly authorizes: John Marshall’s decision in Marbury v. Madison notwithstanding, there is no language that can be found anywhere in the text of the United States Constitution that expressly suggests or permits the Supreme Court or any judges of the United States to pass upon the constitutionality of statutes enacted into law by the Congress or to declare the acts of the chief executive unconstitutional.

   Although Alexander Hamilton in Federalist No.81 may have intimated that such a power might be a necessary extension of the Supreme Court's jurisdiction to enforce Article VI of the Constitution, the Supremacy Clause, that is incredibly fragile scaffolding upon which to build an entire school of aggressive, arrogant jurisprudence that is determined to reign in the powers of the federal government.

   The lack of explicit textual authority in the constitution that would support the kind of judicial overreach in which the appeals court in Canning engaged should prompt the Court of Appeals and the five right-wing jurists on the Supreme Court to ponder the words allegedly attributed to Andrew Jackson in response to the Supreme Court’s decision in Worcester v. Georgia, 31 US 515 (1832), "John Marshall has made his decision, now let him enforce it!"    

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Great, great Andrew Jackson quote, and quite appropriate for the times, in the face of such audacious rulings as Citizens United.
I'm of two minds on this. While I oppose judicial activism, no matter which party it comes from, I also oppose clear efforts by both parties to expand the authority of the executive. I also hate the NLRB, which was created to defang the US labor movement (and succeeded). I say repeal Taft Hartley and force unions to represent the wishes of the members, instead of the trade union bureaucrats.
the constitution is a contemptible document, conceived to defend slavery and the rule of the rich. sane resistance should be directed to replacing it, rather than parsing antique language written to suppress the will of the people.
Thank you, Steve. Jeffrey, I, too, share your conviction that Taft-Hartley is an assault upon the rights of workers. I also concur with Al's observations and have previously written about the need for a new constitution. But the question remains: since we are all trapped within the cage that the Founders welded together, and Locked (an acknowledgement to the man) us in, how to we escape?
For a very important clear analysis of why and how Obama is destroying the democracy of the USA and the long history of its occurrence see
The good part of Original Intent and its cousin Textualism, something of a fiction at times possibly, is the same point of Ulysses at the Mast, tying his hands so that when we think we want to swerve in the short run because its popular, we don't.
That is the argument for Constitutionalism in general, although even Madison wondered if it would forever survive the most enduring source of faction if Federalist 10, unequal distribution of property, which may well be more economically efficient, but possibly impossible to support with majoritarian rule too.
Maybe not. But as to Original Intent, that tying of hands a la Ulysses is the fundamental argument, to avoid what economists call time-inconsistent choices.
Great summary of an issue that has confounded me as well.

Isn't it fascinating that the right wing's view of executive power under the so-called "unitary" theory of government is so expansive that it would allow the president to basically decide for himself (through signing statements) what laws he will enforce, or allow the president, using his commander in chief powers, to attack any country at any time for whatever reason provided he deemed it in the national interest -- and there isn't anything Congress or the Courts can do about it. And yet in the case you cite, the right would deny the president the power to make appointments to his own administration -- the very definition of executive power -- if a conservative minority objects.

I am reading Gordon Wood's history of the Federalist Period, Empire of Liberty, and what becomes clear is that yesterday's Federalists, like today's plutocratic Republicans, considered themselves to be the nation's one, true governing class. By refusing to accept the legitimacy of the Jeffersonian Republicans, Federalists allowed themselves to do anything to maintain their power -- including in Hamilton's case having New York change the way it apportioned electoral votes retroactively during the lame duck session after the 1800 election in which Jefferson won the state in order to prevent Hamilton's great rival from becoming president. The fact that Hamilton later reversed himself and worked assiduously to ensure his great rival became president instead of Aaron Burr, whom Hamilton considered to be a dangerous and unprincipled man, is also one of the great ironies of American history. It was also an irony that cost Hamilton his life as it planted the seeds for the animosities between the two that led to that famous and fatal duel four years later.

Nevertheless, what happened back then is not so different from Republicans today in blue states won by Obama trying to game the system in order to guarantee the victory of the minority over the majority. These ploys all stem from the same fundamental lack of respect for democracy and always have.
Jan, Thank you for your link, which I recommend to everyone. Given the enormous economic inequality and the dead weight of our constitutional machinery, as well as the kind of timid, short-sighted leaders the system encourages, I suspect that the U.S. will continue to fail in its claim to be an exemplar of democracy.

Don's analogy to Ulysses at the Mast is most appropriate and yes, the kind of government that the Founders envisioned - one ruled by the well-born, property-owning and "most enlightened" - is not compatible with the democratic project which incompatibility the Textualists - much like jihadist scholars -further exacerbate.

Like Ted, I, too. have been reading recent works of American history. Although I am critical of Hamilton and the Federalists, as compared to Jefferson and Madison, the former have been excoriated throughout most of American history.

I do not think that Jefferson and the slave-holding Founders should be given a free pass. I am especially appalled by Jon Beacham's new, best-selling biography "Thomas Jefferson: The Art of Power" in which he praises Jefferson for his political genius. I fail to understand how a someone who was raised in a live of privilege, enjoyed leisure and was able to fulfill his intellectual curiosity because others, unfree, labored on his behalf; who refused to manumit his own offspring because of a promise to pay a relative's debts; and who was hostile to all those whose economic interests were not linked to the soil, should be praised as one worthy of emulation by anyone. Jefferson's monumental hypocrisy - and his refusal to address the issue of slavery because he was one of its beneficiaries- made the Civil War inevitable. Jefferson's hand - and that of his surrogate, Madison - in drafting the Constitution - has saddled all of us with a rigid, inflexible, undemocratic form of governance. The system in which we are now all trapped makes it almost impossible for our political and legal institutions to adapt to changing needs, enables special, anti-majority interests to exercise disproportionate power, and, I fear - witness violence and growing inequality - it makes the specter of Hobbes' dystopia increasingly likely.
I neglected to mention that under Article II, Section 3 of the Constitution, the President is given the authority to convene both houses of the legislature, or either, and, in the event of a disagreement between the Senate and the House over the time of adjournment, he is vested with the power to "adjourn them to such Time as he shall think proper."

This provision was not considered by the D.C. Court of Appeals as relevant although, as any student of the language knows, the distinction between a recess and an adjournment is a fine a line as the intervals that denominate when a parliamentary body body is in recess. Such subtleties and nuances, however, seem to have been lost on the three judge panel, all of whom are "true believers."