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Stare Decisis in an Originalist Theory of Law

There is much to admire in Marc DeGirolami’s excellent and thought-provoking essay on bridging the gap between originalism and stare decisis. I’m not sure I disagree with his analysis. But, I think, that analysis would benefit from three refinements or clarifications, with which we can better understand why the Founding generation expected judges to be both originalist and bound by precedent.

First, we ought to be clear that there are at least two different kinds of precedent. There are those precedents that resolve a question within the range of permissible textual interpretations. That was the kind of precedent to which Justice Clarence Thomas was referring in his opinion in Gamble; to which Alexander Hamilton was likely referring in his discussion in Federalist 78; and which originalists argue is consistent with Article III of the Constitution. One can be an originalist but also accept that the original meaning is sometimes open to competing plausible interpretations. What is a judge—or legislator, or executive—to do? When the question is first decided, it will not be decided on the basis of “precedent,” but rather on what these first deciders think is the best answer. Subsequent decisionmakers can then rely on that initial decision or disagree with it. At some point in time, however, future decisionmakers will consider the answer to the question “liquidated” or “settled” if enough earlier decisionmakers landed on a similar answer. This seems to have been James Madison’s view when he refused to veto the Second Bank of the United States, even though he had initially opposed the first bank on constitutional grounds.

This version of precedent explains why the Founders could be originalist while also accepting precedent. And make no mistake about it: The Founders were originalists. Here is John Marshall in Gibbons v. Ogden: “As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense . . . .” And here is James Madison in an 1824 letter to Henry Lee: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.” In David Currie’s magisterial study of the Constitution in Congress in the early decades of the Republic, he concluded that essentially every member of Congress was an originalist, and“[t]he question was not whether to follow the Framers’ intentions, but what those intentions were.”

If the view of the Chief Justice in June Medical, or the Court in City of Boerne, is correct, then that means Abraham Lincoln was wrong to insist that Dred Scott v. Sandford had not settled for the country as a political rule the question whether free blacks were citizens of the United States.

So whence comes the need to bridge the gap between originalism and stare decisis in modern-day cases? The question arises only because at some point in time, the Supreme Court abandoned originalism, and prior originalist precedents, and came up with new law altogether. When precisely this happened is beside the point; it surely happened at different times for different doctrines. The point is, once the Supreme Court decided to change the law, the Supreme Court began to reaffirm its changes. These new legal decisions were now “precedents,” but they were unlike the older precedents in that they were outside the bounds of permissible textual interpretation.

Is this kind of new “precedent” the kind worth adhering to? Professor DeGirolami argues that stare decisis is important because of the values of legal endurance:

Stare decisis fosters the law’s endurance, and consequently its durability, because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome. The law as the “artificial perfection of reason” is a common project achieved by generations of judges and lawyers over the span of centuries. . . .

Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent or antiquity as such.

Here I would make a second refinement, however, or at least a change in emphasis. What makes the artificial reason of the law worth following is that it is more likely than an individual judge’s perception to reflect the correct answer, whether to the textual question, to the question of the correct custom, or of the correct policy. And if that is why we care about the artificial reason of the law and about antiquity and endurance, then it is not at all clear why any demonstrably erroneous, nonoriginalist precedents should be adhered to even if they’re decades old.

That is especially true when we consider that Professor DeGirolami’s conception of stare decisis is inconsistent with judicial supremacy, which I offer as my third point of elaboration. To get the kinds of longstanding and antiquated precedents that reflect the true “artificial reason” of the law requires more than a single Supreme Court decision. Yet more and more it is these single decisions that are at stake in the debates over precedent. It is what makes Chief Justice Roberts’ concurrence in June Medical so insidious. It is what makes the Supreme Court’s refusal, in City of Boerne v. Flores, to reconsider its earlier 5–4 decision in Employment Division v. Smith equally destructive. A nearly unanimous Congress and President signed a law inconsistent with Smith and effectively asked the Supreme Court to reconsider its prior decision, but the Supreme Court refused to do so. Its earlier decision was the law of the land, and that was that. If the view of the Chief Justice in June Medical, or the Court in City of Boerne, is correct, then that means Abraham Lincoln was wrong to insist that Dred Scott v. Sandford had not settled for the country as a political rule the question whether free blacks were citizens of the United States.

To summarize, any theory of precedent must recognize, as does Professor DeGirolami’s, that stare decisis is valuable “because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome.” But this requires a chain of decisions over time, and not a single Supreme Court decision; recognition that ultimately these decisions over time matter only because the numerous individuals at different times and places that have agreed are more likely to have agreed on the correct answer; and that the correct answer must be within the range of possible original meanings. Only by understanding these points can we see how it was possible for the Founders themselves to think that judges would be both originalist and bound by precedent.

Reader Discussion

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on September 09, 2020 at 10:14:17 am

“Stare decisis fosters the law’s endurance, and consequently its durability, because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome. The law as the “artificial perfection of reason” is a common project achieved by generations of judges and lawyers over the span of centuries. . . .”

This statement is true as long as every element of the law that becomes precedent is consistent with the spirit and thus the intention of the law, and that that particular law serves to complement our Constitution.

The Dred Scott Decision, failed to uphold the self evident truth that slavery can only serve to undermine Liberty, by first and foremost, denying the personhood of certain human persons residing in The United States Of America, and thus by denying the fact that every son or daughter of a human person, and not just United States citizens, from the moment they are created and brought into being, are endowed by God, with their unalienable Right to Life, to Liberty, and to The Pursuit of Happiness.
We can know through both Faith and Reason, that it is not possible for a human person to conceive a son or daughter, who is not, in essence, a human person, thus every son or daughter of a human person, from the moment of conception, existing in relationship as a beloved son or daughter, can only be, in essence, a human person.

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Nancy
on September 09, 2020 at 11:10:24 am

Yes, yes and yes. Agree in every particular.

"So whence comes the need to bridge the gap between originalism and stare decisis in modern-day cases? The question arises only because at some point in time, the Supreme Court abandoned originalism, and prior originalist precedents, and came up with new law altogether."

Yes. But new modes of reason qua reason as well. Just to mention two elemental social/cultural forces only topically, progressivist interests with their American roots in the post-Civil War era, notably their program of the usurpation of the Constitution's most basic principles. Also the erosion of natural law and natural rights conceptions, which seems to have gained widespread appeal shortly after Locke, early to mid 18th century. (This is also why terms such as "the artificial perfection of reason" or simply "artificial reason" are far too ambiguous, far too uncritical to be of much help in the context of the topic in question and the wider context of our present late modern and post-modern period in general. They elide far too much that is critical.)

"What makes the artificial reason of the law worth following is that it is more likely than an individual judge’s perception to reflect the correct answer, whether to the textual question, to the question of the correct custom, or of the correct policy. And if that is why we care about the artificial reason of the law and about antiquity and endurance, then it is not at all clear why any demonstrably erroneous, nonoriginalist precedents should be adhered to even if they’re decades old."

Yes. So obviously - Yes. If some single precedent, or set of precedents, are effectively building an Escher-like construction, some tenuous, even fanciful construction because a pretentious Oliver Wendell Holmes, Jr., or a John Roberts is buckling under contemporary social/political pressure, or likewise wants to maintain an au courant posture, or has aristocratic pretentions, why should such hollowed-out rationales and arrogations be honored in subsequent rulings? It is reason, it is reason-cum-natural-law, it is originalist conceptions that should be given precedent, that should be honored, that should be hallowed. Precedent is to be given its due, as the author herein prescribes, but no more than its due. It has an respectable place, but it does not sit at the head of the table.

Now for emphasis: "To get the kinds of longstanding and antiquated precedents that reflect the true “artificial reason” of the law requires more than a single Supreme Court decision. Yet more and more it is these single decisions that are at stake in the debates over precedent. It is what makes Chief Justice Roberts’ concurrence in June Medical so insidious."

Yes. Precisely. Lamentably. Insidious. Pernicious. Roberts. His, in this instance, need to be attuned to au courant sentiments, his presumptive concern for the "reputation" of the Court, ... Whatever the rationale, ultimately an insidious and pernicious arrogation and influence. Vis-a-vis? Vis-a-vis reason, reason-cum-natural-law, originalist conceptions - such lamentable constructions are nothing less than insidious.

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Michael Bond
on September 10, 2020 at 12:50:59 pm

Prof. Wurman is correct in contending that jurists (and scholars) must recognize that "one ring does not fit all (or rule them all)" and that the jurist would be well advised to make effort to distinguish between those *precedents* that are consistent with the original understanding, fall within the contextual confines of COTUS and may be justifiably defended as opposed to those that are purely a consequence of some latter day and fanciful "construction" of a purposive form of judicial reasoning.

Wurman hints at another defect in our present condition - and it is an issue about which Greg Weiner has written extensively - the failure (unwillingness ?) of the Legislative to assert its own constitutional prerogative to determine constitutionality when he discusses the Legislative's failed attempt to override Smith.
The task of the *dutiful* (think Phillip Hamburger) jurist would be considerably eased were the Legislative to assert its authority and contest wrongful precedent.
But I suspect I am engaging in political self delusion!

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gabe

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