Originalism and Constitutional Mistakes
There is of course no doubt that Justices Clarence Thomas and Antonin Scalia take different views on the role of stare decisis in Supreme Court decisions. What is a hard question to figure out is which of these views is correct, and why. As far as Thomas is concerned, fidelity to the Constitution is the sole virtue, and any effort to change its meaning through subsequent judicial decisions must be rejected. No matter how much water has passed over the dam, it is always back to the original position.
John Yoo in his thoughtful comments to Peter's post notes that the slow evolution that leads to the emergence of common law doctrine does not apply to the Supreme Court, where nine justices may with a single violent gesture move the law far from its original home. He thinks therefore that the Court should have the power to correct its own mistakes, without showing as much deference to past decisions as common law courts do. I don’t read John as going all the way with Justice Thomas, but he clearly is more insistent on fidelity to the original Constitution than Justice Scalia.
There is a hidden premise in Thomas and Yoo’s argument that requires explicit discussion. How do we know when the first decision was a “mistake” which the second decision ought to correct? In dealing with this question, the common reference is to the correction of the dreaded 1896 separate but equal decision in Plessy v Ferguson by Brown v. Board of Education some 58 years later.
On moral grounds, it is easy to applaud the Brown decision, but as a matter of constitutional text and history, the case was a lot closer than is recognized today. Indeed at the time, the serious criticism of Brown stemmed from people who did not think that equal protection had anything to do with the public provision of education, but was concerned largely with the administration of the criminal law in an even-handed fashion between the races.
To give but another example, I have come to believe that the correct interpretation of the Constitution lends no textual support for the principle of judicial supremacy, which means that other branches of government have to yield to the Court in the interpretation of the Constitution. I don’t want to rehearse the argument here, but it is worth asking whether after reading the decision more broadly we should go back to the original position such that the Court could not enforce any limitations contained either in the commerce clause or the bill of rights, let alone the decrees on racial integration in the post-Brown years.
My own view is that the broader reading of Marbury is so embedded in common practice that the Court could not go back on it, and should not try. Moreover, one reason why we stick with Marbury and denounce Plessy is that our normative commitments, which run in opposite ways on the two cases, have a good deal to do with whether we continue to follow a constitutional “mistake” or correct it.
In the end therefore, I don’t think that the strong Thomas position can be maintained. What is so vexing is no one has a strong theory about the proper role of stare decisis, which means that the upcoming brawl over the Patient Protection and Affordable Health Care Act will present immense challenges to everyone on both sides of the debate. I have had my say on that elsewhere, and won’t rehearse those arguments again here, except to say that our reading of Wickard v. Filburn will make a large difference in how the case comes out. If it is thought sound on originalist position, the health care bill will be sustained. If that position is rejected, as it should be, the case for the constitutional of the PPACA is much weaker.
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Re: Originalism and Constitutional Mistakes
Thanks for the focused homework assignment Professor Epstein. Note to self: read Wickard v. Filburn and think about how Justice Kennedy will interpret. WWJKD?
Re: Originalism and Constitutional Mistakes
As ever, Richard is more profound and provocative than I, despite my best efforts. I have one comment to add -- I agree with him that Marbury, correctly read, allows for judicial view, but not judicial supremacy. Congress cannot force the courts to enforce an unconstitutional law, but neither can the courts force the other branches to follow its own unconstitutional decisions. But I am not sure why Richard thinks that a Justice who thinks Marbury was wrong must still follow it. Does it have to do with institutional and political stability?
Re: Originalism and Constitutional Mistakes
John comments, Richard counter-comments, and then John asks of Richard an innocent-sounding but actually diabolically clever question.
It's a good day here on Ricochet.
I will now stand back and watch.
Re: Originalism and Constitutional Mistakes
Yes it does, as Justice Roberts said. I do not think that we could easily survive this.
In my new book on the Classical Liberal Constitution, I argue for the importance of the prescriptive constitution, which is taken directly from land law. And as in land law, just because the doctrine is there it does not mean that it always holds. One area for example, in which Thomas is counterproductive is the dormant commerce clause. We can ill afford its demise, especially with the huge government apparatus at the federal level which would make multiple legal regimes the order of the day just everywhere.
Aug '10
Re: Originalism and Constitutional Mistakes
Richard raises the issue of the meaning of Marbury and the role of the Court to illustrate the difficulty of getting back to an original understanding. But aren’t these two questions linked in another way as well? That is, if the Court is the ultimate interpreter of the Constitution and the other branches must bow to its views (see Cooper v. Aaron), then this problem of the conflict between the need for consistency versus fidelity to original understanding becomes much more acute. That is, wouldn’t a more modest understanding of judicial review and the overall place of the Court in our Constitutional system leave more space for mistakes—and more space for the political branches to react against them and for the Court to eventually correct them? And such an understanding would hopefully force, or at least encourage, the other branches to start thinking constitutionally again.
Mar '11
Re: Originalism and Constitutional Mistakes
You say in response to Professor Yoo:
"We can ill afford its demise, especially with the huge government apparatus at the federal level which would make multiple legal regimes the order of the day just everywhere."
Would you expand some on the concerns you there express? Thank you.
Feb '11
Re: Originalism and Constitutional Mistakes
I take comfort in the professors’ apparent agreement with my view of Marbury v. Madison. For those who didn’t take Constitutional Law, Marbury sought a writ against Madison in the Supreme Court. Congress had passed a law giving the Supreme Court original jurisdiction in granting certain writs, making them the first and only court to hear the case. With the exception of a few specific matters, however, the Constitution says that the Supreme Court has only appellate jurisdiction. In other words, the Constitution says that generally the Supreme Court can only review decision made by other courts.
In Marbury, the Supreme Court held that the Constitution did not give Congress authority to give them original jurisdiction over the case, and they therefore did not have the power to issue the writ. Fundamentally, it recognized that the Court had to conduct itself in compliance with its interpretation of the Constitution. This is a far cry from asserting that the Court can compel the other branches of the Federal government to conduct themselves in compliance with the Court’s interpretation of the Constitution. That leap came latter.
Feb '11
Re: Originalism and Constitutional Mistakes
I hadn't ever thought about Scotty Pippen's question, but it seems to raise a more fundamental one: Who can force a government to comply with the Constitution that created it?
The facile answer is the people, who will vote out anyone who dares violate the sacred text. The problem is "the people" rarely let a mere Constitution get between them and something they want. This implies that a Constitution cannot serve as a bulwark against the tyranny of the majority.
The dangerous answer is the people, who will rise up in revolt to defend their Constitution. See the Civil War.
And who says “the people” know what the Constitution means?
So it seems that a Constitution must be self-enforcing. Ours tries to do so through checks and balances. But if each branch is its own arbiter of its Constitution powers, is there really a check? If not, we could do worse than letting the non-political branch (the Judiciary) have the final say in such matters.
Aug '10
Re: Originalism and Constitutional Mistakes
ShellGamer: Is it not quite dangerous for the people, as well as the political branches, to resign themselves to the notion that the Constitution means whatever the Court says it means? It seems then self-government becomes a fiction. And the Judiciary as final arbiter doesn't square with a notion of checks and balances. The alternative your raise, each branch as its own arbiter (what Jefferson favored and is sometimes called "departmentalism"), is not the only alternative. Lincoln's model was that while he would abide by the decision of the Court as it pertained to the parties to a particular case, he would not necessarily allow this same decision to be determinative of future policy. And it seems to be that the people as well as all of their representatives ought to be in the habit of thinking constitutionally. Constitutional interpretation ought to be the function of each of the branches engaging one another, sometimes clashing.
Aug '11
Re: Originalism and Constitutional Mistakes
If we hold with the original interpretation, then Richard is correct. There is nothing in the Constitution that allows for Judicial Supremacy over the laws passed by the national legislature.
Why then do we continue to hold with Marbury and with the notion of judicial supremacy. Perhaps because Justice Marshall introduced a needed check and balance to legislative power. It may not even have been his intention to do so. He certainly seemed to want to take a last minute swipe at Thomas Jefferson. They were cousins and Marshall was a Federalist. The election had destroyed the Federalist party -- except on the Supreme Court.
Incidentally, the Warren Court were very careful NOT to overturn Plessy. It took a civil war and two Constitutional amendments to overturn Dred Scott. At least in 1858 Judicial supremacy did not work out well. See the Lincoln/Douglas debates.
Aug '11
Re: Originalism and Constitutional Mistakes
I see that Judge Thomas is an originalist. Scalia and Thomas are an important counter to those who would like the Constitution infinitely malleable.The danger in dispensing entirely with stare decisis, is, I think, that it is a time-tested way of lessening the chance of sudden and extreme changes in the law. Adaptive systems are always threatened by extreme changes -- even changes for the better. And if there is to be an extreme change, then I don't think it should be introduced by an unelected branch of government -- particularly one that cannot be effectively checked.
I am more interested in Thomas' efforts to introduce "natural law" into the judicial process, and his efforts to include a doctrine of enumerated rights as in his last opinion on gun control.
What do those of you with legal credentials think about Thomas on "natural law" and Thomas on "enumerated rights" in addition to natural rights?
Re: Originalism and Constitutional Mistakes
Regarding the request of cbc: I agree with those who say that Thomas' natural-law jurisprudence is the greatest threat to the liberal desire to replace limited, constitutional government with a regulatory-welfare state with unbridled power.
I also agree with those who feel Thomas' jurisprudence on enumerated rights with respect to, at the very least, substantive due process, are important in defending the states against against a over-centralized government. Well...I assume people feel that way, and I agree with those people.
One tangent on Thomas: I hear he has the Litany of Humility on his wall in his office in the Supreme Court. That says a lot to me. I can't get enough of that litany.
Edited on September 3, 2011 at 9:05pmFeb '11
Re: Originalism and Constitutional Mistakes
Scotty Pippen: I want very much to agree with you. I truly despise cynical congressmen who vote for popular but unconstitutional laws trusting that the courts will strike them down. I do not dispute that it is as much the President's and Congress's job to interpret the Constitution as it is for any judge, and that they should conform their acts to that interpretation. The violate their oaths of office when they fail to consider whether their actions are constitutional.
I worry, however, that departmentalism inevitably leads to relativism. A written Constitution only works if we agree that it has some objective meaning. This is why I find it hard to reconcile liberal jurisprudence to a written Constitution. If each branches' interpretation is equally valid, then it would be harder to say that there is an objective interpretation. On the other hand, having a final arbiter suggest that interpretation is properly a search for the true meaning. I realize that the Court has failed us here, by acting as the final arbiter of relativistic interpretations--but at least some of us see this as a failing, rather than a natural aspect of Constitutional government.
Feb '11
Re: Originalism and Constitutional Mistakes
As Professor Epstein suggests, the other problem with a purest approach to Constitutional interpretation is the fundamental importance of equality and efficiency in the administration of justice. If every decision applies only to the parties before that court, then we have no assurance that like cases will be treated in a like manner, which most of us regard as a fundamental element of justice. Moreover, if the outcome of a case cannot be predicted before it is tried, it becomes very difficult for people to regulate their conduct in compliance with the law.
Letting every litigant reargue every question of Constitutional interpretation also undermines the efficient administration of justice. Losing parties would have no reason not to appeal and apply for cert in every case, hoping that they could convince this particular set of justices to apply the Constitution differently to their particular facts. The social cost of correcting mistaken interpretations in this fashion would certainly outweigh the benefit of the corrections, and may even increase the frequency of erroneous interpretations.
The case for stare decisis may be weaker in matters of constitutional interpretation, but there is still a case for it.