Separation of Powers and the Origins of the Appointment Clause
![handle is hein.journals/syrlr37 and id is 1053 raw text is: SEPARATION OF POWERS AND THE ORIGINS
OF THE APPOINTMENT CLAUSE
Theodore Y. Blumoff*
L INTRODUCTION
One hundred years ago, Lucy Salmon published the History of
the Appointing Power of the President,1 a 125 page study that de-
voted only five pages to the creation of article H, section 2, clause 2
of the United States Constitution.2 Since Salmon presented her
work, Max Farrand's monumental work on the Constitutional Con-
vention has appeared.3 In addition, Professor Merrill Jensen's mul-
tivolume documentary history of the state ratifying convention is
in progress,4 and a searching analysis and critique of the applica-
tion of historical analysis in the determination of contemporary
constitutional issues has begun in a variety of contexts.5 Although
* Assistant Professor, Walter F. George School of Law, Mercer University; Ph.D., St.
Louis University, 1976; J.D., Washington University (St. Louis), 1982.
I would like to thank a number of friends and colleagues whose insights and comments
on an earlier draft of this article improved its content and style, including Richard Helm-
holz of the University of Chicago; David Konig, currently on leave from the history depart-
ment at Washington University, now a senior researcher at the Colonial Williamsburg Foun-
dation; and my colleagues Ivan Rutledge, Harold Lewis, Fred Gedicks and the members of
the faculty development group at Mercer. My research assistant, Jim Weis, provided excel-
lent aid and a number of useful comments. Finally, I thank Mercer Law School's former
Dean, Karl Warden, for making financial assistance available for research.
1. See L. Salmon, History of the Appointing Power of the President, in 1 PAPERs OF
Ax HiT. Assoc. 1 (No. 5, 1886).
2. See id. at 9-14.
3. See M. FARRAND, THE RxcoRDs OF THE FEDERAL CoNVMON oF 1787 (Yale ed. 1966;
4 volumes originally published in its current form in 1937).
4. See Tan DocuMENTARY HISTORY OF THE RATIFICATION OF THE CONSTnInoN (M. Jen-
sen ed. 1976) [hereinafter Docu~msTARY HIsToRY] (five of a projected fourteen volume com-
pilation currently available).
5. Although I am familiar with the on-going critique of interpretivist approaches to
constitutional history, I generally agree with those commentators who have pointed out that
interpretivism (i.e., the ability to literally interpret provisions of the Constitution in light of
their terms and the intent of the framers in order to reach the correct result) is more
defensible in the separation-of-powers context than in others. Compare Amar, A Neo-Fed-
eralist View of Article III: Separating the Two Tiers of Federal Jurisdiction 65 B.UL. Ray.
205, 207 n.7 (1985) (an examination of article I suggesting its text, history, and structure
are both determinate and mutually reinforcing) and Carter, Constitutional Adjudication
and the Indeterminate Text: A Preliminary Defense of the Imperfect Muddle, 94 YALE LJ.
1037](ViewImageLocal?handle=hein.journals/syrlr37&div=46&collection=&method=preview&ext=.png&size=3)
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Separation of Powers and the Origins of the Appointment Clause
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