# Textualist meaning of "shall" re SC. **URL:** \ **Category:** Great Debates\ **Created:** [February 21, 2016, 4:15pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697 "2016-02-21T16:15:32Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [February 21, 2016, 4:15pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/1 "2016-02-21T16:15:32Z")
Spun off from other threads on the subject - Taking the Scaliaesque spin on it, what did the framers mean when they said “shall”? Did they intend it to be an open-ended “shall”, shall at some future point that they determine is in their political interests, no matter how long in the future it may be? Did they at the time have some period of time that they intended as reasonable to act upon? If somehow a Senate refused to consider any of a President’s nominees for a whole term … stating they would only consider a nominee from a different President (oh let’s make up that the Democrats decided that Bush while legally President was not really entitled to offer given Gore got more votes and refused to consider any of his nominees) how would a truly originalist (not only conveniently so) court rule and why if it came before them? ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 21, 2016, 5:16pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/2 "2016-02-21T17:16:59Z")
I’m pretty sure the “shall” in the relevant section of the Constitution refers to the President, not Congress. > [@](#): > > and he (the President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 21, 2016, 5:47pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/3 "2016-02-21T17:47:14Z")
The OP needs to decide if he is looking for a textuslist or originalist analysis. They are not the same thing. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [February 21, 2016, 5:47pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/4 "2016-02-21T17:47:57Z")
Would that have been what the framers meant? Or did they, in the context of the time, mean the shall to apply to the complete process? Honestly I do not know. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [February 21, 2016, 5:50pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/5 "2016-02-21T17:50:25Z")
I am looking to reduce my ignorance and have heard them used interchangeably. Maybe I am wrong. I mean how Scalia proposed. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [February 21, 2016, 5:59pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/6 "2016-02-21T17:59:05Z")
I don’t think any reading by any legal school of thought, be it textualist or originalist, would find that the Senate is “required” to either deliberate on a nominee or approve one. The plain wording and the way it’s been used for over 225 years is that the President has broad discretion in whom he nominates and the Senate has broad discretion in their approval. I think people often struggle with our constitution because they assume “surely there isn’t a mechanism where you can just refuse to do something and muck up government” but there are many such mechanisms in our system of government and the Framers may not have anticipated all of them but some of them they even wrote in debates/argument papers after the convention that the Federal government was being crafted by design to be slow/deliberative, to force compromise between the branches by making the main two able to block each other’s actions pretty routinely. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 21, 2016, 6:02pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/7 "2016-02-21T18:02:38Z")
Ok. Textualist then. My take is that the shall is directed at the president (basic grammar), but no time frame specified. And since the court can opperate with 8 justices just fine, there is no need to impose an artificial timeframe. ETA: i agree with Martin that most justices, textuslists or not, would not find there to be some timeframe involved. Where it gets more complicated is if the entire court were wiped out. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [February 21, 2016, 6:03pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/8 "2016-02-21T18:03:21Z")
> [@DSeid](#): > > Would that have been what the framers meant? Or did they, in the context of the time, mean the shall to apply to the complete process? Honestly I do not know. The most reasonable interpretation to me is that the “shall” is meant for the whole process: this is what _needs_ to happen, and it is incumbent upon both President and Senate to see to it. And, while there is no specific timeline, I’m sure the expectation was that, in the typical course of things, it would be accomplished by the holders of the respective offices at the time the vacancy appeared. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 21, 2016, 6:13pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/9 "2016-02-21T18:13:00Z")
I am on my phone so don’t have easy access to the text of the constitution. But this section is in the article concerning the executive branch, no? If Congress were required to do something, it would have been put in that artcle concerning the legislative branch. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 21, 2016, 6:13pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/10 "2016-02-21T18:13:52Z")
Reasonable based on what? The text, intent, or potential poor outcomes, or something else? -this was for Peremensoe ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [February 21, 2016, 6:35pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/11 "2016-02-21T18:35:50Z")
I don’t know if this helps, but our State legislature passed a law that said basically everyplace the word “shall” appears is to be replaced with the word “will”. If this is the case at the _Federal_ level, the reading would be “[The President] will nominate …” which indicates he has to, not really an optional thing. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [February 21, 2016, 7:04pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/12 "2016-02-21T19:04:38Z")
> [@Bone](#): > > Reasonable based on what? The text, intent, or potential poor outcomes, or something else? > > -this was for Peremensoe In the context of this thread, the original intent of the framers. What did they reasonably think what they wrote meant? Did they think it meant that the President was obligated to nominate but could continue to say ad infinitum, “I’ll get to it” and that the Congress telling him to not submit any name would count as their advice, that their original intent was for Congress to be able to not act ad infinitum? I am looking for somebody with some context of the time to offer up in evidence. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [February 21, 2016, 7:14pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/13 "2016-02-21T19:14:53Z")
Don’t mess with textus ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 21, 2016, 7:15pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/14 "2016-02-21T19:15:03Z")
> [@watchwolf49](#): > > I don’t know if this helps, but our State legislature passed a law that said basically everyplace the word “shall” appears is to be replaced with the word “will”. If this is the case at the _Federal_ level, the reading would be “[The President] will nominate …” which indicates he has to, not really an optional thing. It’s standard to read “shall” in legal texts as a requirement, not an option. I don’t think there’s any question that its a requirement for the President to appoint a justice. And while there’s no timeframe attached, allowing it to be postponed indefinitely would make the phrase meaningless, so presumably “in some reasonable timeframe” is implied. There’s no shall for congress. The “advise and consent” clause was a compromise between people that wanted the Congress to appoint everyone and people that wanted the President to. I don’t think anyone at the convention ever considered the fact that Congress might just take a pass on voting on appointees altogether and let positions remain empty indefinitely (and since the practicalities of 18th century travel meant that Congress had to go into recess every year, if they did picture it, presumably they’d imagine they’d be defacto leaving it up to the President to fill the positions via recess appointments). ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [February 21, 2016, 7:15pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/15 "2016-02-21T19:15:18Z")
> [@DSeid](#): > > In the context of this thread, the original intent of the framers. What did they reasonably think what they wrote meant? Did they think it meant that the President was obligated to nominate but could continue to say ad infinitum, “I’ll get to it” and that the Congress telling him to not submit any name would count as their advice, that their original intent was for Congress to be able to not act ad infinitum? > > I am looking for somebody with some context of the time to offer up in evidence. Okay well–you should know there is no evidence, it’s opinion based. I can’t think of a President that has had any reason to not nominate someone in a pretty fast time frame–Presidents like putting people on the Supreme Court, we do have instances in which the Senate has refused to nominate or delayed holding hearings. The only thing that ever ended those situations was the Senate eventually held hearings and approved a nominee–there’s not any judicial precedent I’m aware of (and frankly I do not believe it exists) that has “hard coded” time frames at all. Further, I don’t believe there is any judicial remedy. The Supreme Court has largely avoided ever directing the President to execute things, or the legislature to take votes. They’ve ruled that actions are illegal and that laws are illegal, and the other branches have usually responded accordingly (by ceasing the illegal action, and if necessary following the proscribed remedy the court laid out.) Specifically for the executive branch being ordered to stop doing stuff, it’s almost always related to habeas corpus claims, for which there is unequivocal constitutional support for the court’s involvement. Essentially if you want proof there isn’t a mandatory time frame I’d counter that you’re asking for proof of a negative–there’s never been any precedent for establishing such a time frame. In fact I’m not familiar with the legislature ever being told “you need to vote on x by y date” by the courts in the history of the United States, do you have any evidence that this has ever happened? The legislature has a responsibility to vote on a great many things, but there’s never been any clearly established remedy for their failure to do so. I’ve also never heard of a President being compelled by a court to make an appointment. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [February 21, 2016, 7:16pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/16 "2016-02-21T19:16:58Z")
Like a lot of responsibilities of office, the consequence for not doing something you’re supposed to do is largely political, for the President it could mean impeachment, for congress it could mean removal from office by the rest of the congress in cases of impropriety by individual members, or defeat at the ballot box. The President isn’t supposed to selective enforce the laws either, but many have done that. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [February 21, 2016, 7:23pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/17 "2016-02-21T19:23:19Z")
FWIW [some insight into the thoughts of the framers](https://www.nccs.net/2005-06-the-advice-and-consent-of-the-senate.php). John Adams’ concern: > [@](#): > > “It [the requirement for the Senate to confirm appointments] has a natural tendency to excite ambition in the Senate. An active, ardent spirit, who is rich and able, and has a great reputation and influence, will be solicited by candidates for office…. Will he not naturally be tempted to make use of his whole personage, his whole influence, in advising to appointments, both with president and senators, to get such persons nominated as will exert themselves in elections of president, vice-president, senators, and house of representatives, to increase his interest and promote his views?” > > Then John Adams followed with this prophetic observation: “We shall very soon have parties formed; a court and country, and those parties will have names given them. One party in the house of representatives will support the president and his measures and ministers; the other will oppose them. A similar party will be in the senate; these parties will study with all their arts, perhaps with intrigue, perhaps with corruption, at every election to increase their own friends and diminish their opposers. Suppose such parties formed in the senate and then consider what factious divisions we shall have there upon every nomination.” (The Founders Constitution, Vol. 4, p. 107) Sherman’s response: > [@](#): > > “If the president alone was vested with the power of appointing all officers, and was left to select a council for himself, he would be liable to be deceived by flatterers and pretenders to patriotism, who would have no motive but their own emolument. They would wish to extend the powers of the executive to increase their own importance; and, however upright he might be in his intentions, there would be great danger of his being misled, even to the subversion of the constitution, or, at least to introduce such evils as to interrupt the harmony of the government, and deprive him of the confidence of the people.” (Ibid., p. 108) It seems to me that they clearly did NOT intend refusal of consideration to be used as a means of increasing their power over the choice made by the executive branch for them to consider. There was in fact significant fear expressed about such sorts of abuses of their power, as opposed to them ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [February 21, 2016, 7:32pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/18 "2016-02-21T19:32:56Z")
What they intend and what remedy a court would offer up are different things. Even if a textualist reading (and it doesn’t the plain grammar puts the " shall" on the Presidency, and the President has never failed to make a nomination) or an originalist reading (the Framers intended the Senate to make good faith consideration/approval) might support the idea that the Senate **should approve** , those same schools of thought would also be forced to find that the constitution doesn’t offer the court any **remedy**. The court doesn’t have the power to compel votes on the Senate floor, it never has, it has never asserted it–I don’t even think the most liberal current justices would say “we think the court can mandate the Senate hold a vote on something”, further the Senate could still just refuse, then we have a constitutional crisis. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [February 21, 2016, 7:51pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/19 "2016-02-21T19:51:40Z")
> [@Bone](#): > > Reasonable based on what? The text, intent, or potential poor outcomes, or something else? > > -this was for Peremensoe > [@DSeid](#): > > In the context of this thread, the original intent of the framers. What did they reasonably think what they wrote meant? Yes, just so. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [February 21, 2016, 8:22pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/20 "2016-02-21T20:22:04Z")
> [@Martin\_Hyde](#): > > What they intend and what remedy a court would offer up are different things. … The op is asking what they intended. It presumes that a hypothetical Senate would abide by the ruling of the Court and not ignore it. [And here’s a different take!](http://www.yalelawjournal.org/pdf/1129_tk2rqipz.pdf) > [@Matthew C. Stephenson](#): > > It is generally assumed that the Constitution requires the Senate to vote to > confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, > that when the President nominates an individual to a principal executive branch position, the > Senate’s failure to act on the nomination within a reasonable period of time can and should be > construed as providing the Senate’s tacit or implied advice and consent to the appointment. On > this understanding, although the Senate can always withhold its constitutionally required > consent by voting against a nominee, the Senate cannot withhold its consent indefinitely > through the expedient of failing to vote on the nominee one way or the other. Although this > proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues > that this reading of the Appointments Clause would not contravene the constitutional text, > structure, or history. > \ > Although scholars, judges, and laypeople speak casually of a constitutional > requirement of Senate “confirmation” of presidential nominees,24 the key > constitutional text—Article II, Section 2’s Appointments Clause—does not > speak of Senate “confirmation,” nor, for that matter, of a Senate “vote” on > appointments.25 Rather, the Appointments Clause reads: > [The President] shall nominate, and by and with the Advice and > Consent of the Senate, shall appoint Ambassadors, other public > Ministers and Consuls, Judges of the supreme Court, and all other > Officers of the United States, whose Appointments are not herein > otherwise provided for, and which shall be established by Law . . . .26 > The critical phrase in this clause, for present purposes, is “by and with the > Advice and Consent of the Senate.” The question is whether this phrase > necessarily implies an affirmative confirmation vote—that is, a form of express > consent—or whether it is possible to read this phrase, in the context of the > Appointments Clause, as entailing the possibility of tacit, implied, or constructive > consent to a presidential nominee. … [Next page](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697.md?page=2)