My colleague, Thomas E. Nielsen, just published a thought-provoking post detailing some of the methodological approaches at play in CFPB v. Community Financial Services Association of America. Nielsen insists that the case exposes “methodological divisions” among the Justices. But that’s not quite right. A closer look reveals their shared focus on a single interpretive question: What was the original meaning of the constitutional text? To be sure, the Justices discussed history, settled practice, and “novelty.” But these considerations were means or gloss — not ends. They were methodological tools — not methodological objectives. And, with respect to the latter, the Justices seemed to agree. Though they discussed different tools, they each accepted the notion that if the original meaning of the text were clear, their inquiry would be over. In this respect, then, Nielsen overlooks the methodological convergence of the Court. Indeed, Community Financial Services suggests that we are all (still) originalists. In fact, we might all be public meaning originalists.
Take Justice Thomas’s majority opinion. Early on, he made the Court’s mission clear: its “concern [was] principally with the meaning of the word ‘appropriation.’” But not just any meaning. Justice Thomas sought to uncover the meaning of “appropriation” “[a]t the time the Constitution was ratified.” To do so, Justice Thomas unpacked his originalist tool belt.
First, he looked at founding–era dictionaries to discern the “ordinary usage” of the word “appropriation” at the time of ratification. Then, he turned to “[p]re-founding” English and colonial history, again with the purpose of understanding how the word was understood at the time of the founding. Justice Thomas’s invocation of post-ratification history shared a similar objective. As he noted, “[t]he practice of the First Congress . . . provides contemporaneous and weighty evidence of the Constitution’s meaning.” Thus, both pre-ratification history and soon-after-ratification tradition helped Justice Thomas discern the meaning of the written word.
That’s why Nielsen’s contention that “Justice Thomas’s analysis may be flawed in the separation-of-powers context” is puzzling. Even if Nielsen is correct that the “concept of the separation of powers lacked a fixed meaning at the time of the Founding,” it’s not clear why that would undermine Justice Thomas’s argument. Justice Thomas was not interpreting what the “separation of powers” meant. Instead, he was discerning the meaning of the word “appropriation.” Indeed, in the latter half of his opinion, he seemed to reject the Respondents’ separation-of-powers argument. He did so because they offered no “theory” for why the Appropriations Clause “require[d] more” than its plain meaning.
In other words, Justice Thomas was answering an interpretive question. He was not, as Nielsen contends, answering a “separation-of-powers question[].” To be sure, Community Financial Services implicated separation-of-powers concerns. But for Justice Thomas, those concerns were beside the point if they did not bear on constitutional meaning. Nielsen’s criticism of Justice Thomas misses the mark, then, because he frames the case as a dispute over “nebulous separation-of-powers questions.” But it wasn’t. It was a case about the words on the page.
However, with that framing in mind, Nielsen stakes out his preferred method of discerning constitutional meaning. He contends that “separation-of-powers questions were typically worked out by the political branches over time, resulting in the gradual development of norms with no judicial involvement.” So, he continues, “post-ratification courses of conduct by the political branches should guide” our “inquir[ies]” into “separation-of-powers disputes.” And Nielsen views Justice Kagan’s concurrence as an adoption of that view. But that might not be right.
To be sure, Justice Kagan did argue that “‘“[l]ong settled and established practice” may have “great weight”’ in interpreting constitutional provisions about the operation of government.” And after walking through “over 200 years” of history, she concluded that — from the founding until today — “Congress has ‘exercised broad discretion in crafting appropriations’ to the Executive Branch.” But Nielsen reads too much into Justice Kagan’s methodological approach. In reality, Justice Kagan agreed with the majority that the fixed original meaning should control.
For starters, Justice Kagan began her concurrence by agreeing with the majority’s conclusion: the Appropriations Clause “at its inception . . . granted Congress ‘a wide range of discretion’” over funding schemes. In other words, Justice Kagan began by noting that the original meaning of the Clause, as outlined by Justice Thomas, gave Congress a great deal of play in the joints. After recognizing that, she noted how post-ratification history confirmed that understanding of the Clause. Indeed, as she put it: “unbroken congressional practice . . . provide[d] another reason to uphold Congress’s decision about how to fund the CFPB.” It seems, then, that historical practice did not dictate the meaning of the fixed text; instead, it provided a corroborative gloss on its plain meaning.
Nielsen seems to read Justice Kagan’s concurrence as engaging in a form of constitutional liquidation. Indeed, she cited James Madison’s treatment of the issue in her opinion. But, as Professor William Baude has noted, Madisonian liquidation is only permissible in instances of textual indeterminacy. Justice Kagan herself implicitly recognized that requirement in Chiafalo v. Washington. There, she noted the “sparse instructions” of the Electors Clause before plunging into post-ratification practice. Here, however, she began her concurrence by agreeing with Justice Thomas’s conclusion that the “text” of the Constitution “at its inception” demanded the Court’s conclusion. Because she treated the original text as dispositive, Justice Kagan was not engaging in liquidation in this case.
This reading of Justice Kagan’s concurrence is buttressed by the fact that Justices Kavanaugh and Barrett joined her opinion. Justice Kavanaugh has endorsed the practice of reading text in a way that honors its “original public meaning.” Justice Barrett, too, has cautioned against the Court adopting a “freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.” While Justice Barrett mayhave signaled her openness to looking at historical practice in cases dealing with “structural provisions,” she’s on record as a public meaning originalist.
What does this all mean? Given Justice Kagan’s agreement with the majority’s conclusion — and considering who joined her opinion — it’s more plausible to read her concurrence as an affirmation that congressional practice simply confirmed Justice Thomas’s originalist analysis. Post-ratification practice, on its own, did not drive her interpretation of the fixed text, nor did it dictate the meaning of the written word.
Justice Jackson, too, was persuaded by the meaning of the words on the page — and by that alone. She bluntly began her own concurrence by noting that the “plain meaning of the text” was dispositive. She relied on original meaning, not practice or abstract values. And, notably, she only joined the majority’s meaning-centered analysis — not Justice Kagan’s concurrence.
Even Justice Alito, who dissented from the opinion along with Justice Gorsuch, shared the majority’s methodological objective. He, too, was interested in figuring out what the “Appropriations Clause was understood to mean when it was adopted.” But he rejected the majority’s practice of “consulting a few old dictionaries” to determine “ordinary usage.” Instead, for Justice Alito, “‘Appropriations,’ as used in the Constitution, [was] a term of art” with a “specialized and well-established meaning[].” So, it had to be interpreted in light of its “legal tradition” and “centuries of practice.” Justice Alito seems to have been arguing that the Court should have looked to “original legal meaning” or the “language of the law” rather than common parlance. So, Justice Alito and Justice Thomas agreed that original meaning should control — they just diverged on which type of original meaning should govern.
But Nielsen sees it differently. He suggests that Justice Alito was focused on “novelty” — not original meaning. True, Justice Alito did note that the CFPB’s funding structure was “unprecedented.” But acknowledging that reality was, again, a means — not an end. The fact that the CFPB’s funding scheme lacked an “analog in history” was strong evidence that the Appropriations Clause, as originally understood, did not permit such a system. In this way, his discussion of novelty was a component part of his historical analysis; it wasn’t an “arbitrary rule[].” By using that historical approach, he viewed his analysis as more “faithful to the original understanding of the Appropriations Clause and the centuries of history that gave birth” to it.
At first blush, it might seem that the Court was methodologically divided in Community Financial Services. But upon closer examination, all of the Justices can be heard humming the same methodological tune. For the entire Court, the original and plain meaning of the text was centerstage. Even Justice Kagan did not, as Nielsen suggests, embrace an interpretive inquiry that privileges “post-ratification courses of conduct by the political branches.” The Justices were singularly focused on original meaning. Other considerations were either only means to that end or its corroborative gloss. Community Financial Services is thus a case study in methodological convergence. Across opinions, the fixed and original meaning of the constitutional text was king.