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Is Precedent Consistent with Originalism? A Response to Some Comments

My post on The Greater Originalist, which argued that following precedent was consistent with originalism, prompted some comments by Andrew Hyman and Tim Sandefur.  Here I will briefly articulate my theory of constitutional precedent (developed with John McGinnis) and then respond to their questions.

My view of precedent is as follows.  First, I argue that the Constitution itself allows for precedent.  In particular, the original meaning of the Constitution contemplates common law precedent rules that are binding on judges.  But the Constitution also allows Congress to enact precedent rules that would displace the common law rules.

Second, I argue on policy grounds that the best precedent doctrine would be an intermediate one that follows the original meaning except in limited circumstances when the benefits of precedent outweighs the benefits of following the original meaning.  This doctrine, however, should employ rules to identify the situations when precedent should be followed, and should not allow judges to employ a balancing test to determine whether to employ precedent.

One of the precedent rules that I defend would have judges follow precedents that have the same degree of support that a constitutional amendment would require.  In that situation, the precedent would have many of the characteristics of a constitutional provision.  Of course, a constitutional amendment would be superior, because it would have been actually enacted.  But overturning precedents that have such strong support also has serious costs.

Let me now respond to Andrew and Tim.  Andrew imagines a problematic precedent, such as Griswold’s conclusion (that contraception between married adults is constitutionally protected) being derived from the Appointments Clause.  I agree that this is silly reasoning, but of course such reasoning is unlikely to come from the Supreme Court.  It is also unlikely that such a case would be widely embraced by the nation.  But if such a case were widely embraced, as I think the actual Griswald case is, then it should be followed.  Andrew worries that the Supreme might “extract . .  a fake overwhelming national consensus from whatever tea leaves they examine” and therefore “effectively amend the Constitution.”  But the abuse of standards is always possible.  The Supreme Court could “extract a fake” interpretation of the original meaning and effectively amend the Constitution as well.  The question is whether the standard is desirable, not whether it can be abused.

Tim argues that the Constitution represents the sovereignty of the people and it confers only a limited delegation to the Supreme Court.  Therefore, there can no obligation of the Supreme Court to follow a precedent that is contrary to the Constitution enacted by the people.  But Tim’s argument assumes to be true what I argue is false: that the Constitution does not allow binding precedent.  If my interpretation of the original meaning is correct, and I think it is, then the people have authorized the Supreme Court to apply precedent rules that allow precedents that conflict with the original meaning.

Reader Discussion

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on May 13, 2012 at 12:43:14 pm

"One of the precedent rules that I defend would have judges follow precedents that have the same degree of support that a constitutional amendment would require. In that situation, the precedent would have many of the characteristics of a constitutional provision. Of course, a constitutional amendment would be superior, because it would have been actually enacted. But overturning precedents that have such strong support also has serious costs."

We already have a formal procedure for determining that a change to the Constitution is popular on the scale of a constitutional amendment. It's called "amending the Constitution". Any set of rules you informally devise to determine that a wrongful precedent is popular on that level will either find some changes 'popular' which would not have been ratified if formally proposed using article V, or be precisely redundant.

In fact, isn't the former the whole point of allowing 'change' outside of Article V? To 'legitimize' changes which couldn't have been ratified?

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Brett Bellmore
on May 15, 2012 at 13:15:19 pm

[...] his latest contribution to our exchange about the courts’ obligation to follow precedent, Prof. Michael Rappaport answers a question that I posed in the comments section of the Liberty Law Blog. He had argued that “the [...]

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Does originalism really lead to an all-powerful Supreme Court? | PLF Liberty Blog
on May 17, 2012 at 12:47:11 pm

Some brief responses to Professor Rappaport's blog post....

"But overturning precedents that have such strong support also has serious costs." These costs are largely imaginary, and could easily be alleviated by appropriate explanation by the Court.  First and foremost, the Court could explain that it believes a strong consensus exists so that Article V can easily be employed.  Second, the aura of infallibility of SCOTUS is better destroyed than preserved, because they are not in fact infallible, so that is a negligible cost as well.  Third, preserving a precedent that violates the original meaning of the Constitution is itself a precedent for more such shenanigans.  Fourth, the Supreme Court is not equipped to accurately determine whether a constitutional amendment would succeed in the event that the Court were to kindly allow constitutional democracy to take its course as the Court is sworn to do.

 "I agree that this is silly reasoning, but of course such reasoning is unlikely to come from the Supreme Court." On the contrary, the laughable opinion of Justice Douglas in Griswold actually relied in part upon the Third Amendment's restrictions on quartering soldiers in people's homes.  That rationale was about as patently absurd as any rationale that the Court could possibly offer for anything.  

"But if such a case were widely embraced, as I think the actual Griswold case is, then it should be followed."  I agree that the result of Griswold is widely embraced, in the sense that most (if not all) states have no interest in banning contraceptives.  But I am not convinced at all that Congress and 3/4 of state legislatures would approve a constitutional amendment that says something like: "Congress and state legislatures shall no longer have any power whatsoever to pass any law that five of nine unelected and unaccountable SCOTUS judges deem violative of privacy." And that it is an honest description of what the Griswold decision said and did.

"The question is whether the standard is desirable, not whether it can be abused." I disagree.  A wonderful standard that can be very easily abused is much worse than a merely satisfactory standard that cannot be easily abused.

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Andrew Hyman
on May 17, 2012 at 12:58:06 pm

Incidentally, Professor Rappaport, I again strongly object to statements like this: "First, I argue that the Constitution itself allows for precedent." This is a straw man. No one disputes it, as far as I know.

As Professor Caleb Nelson has explained in great detail, the framers envisioned a system where precedent would be followed where it resolves ambiguity about the original public meaning of the text. Nelson is correct. But where a precedent manufactures fake ambiguity, or clearly misinterprets unambiguous text (in haste or ignorance) then precedent should be overturned.

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Andrew Hyman
on May 17, 2012 at 19:26:23 pm

Mr. Hyman, Many originalists dispute that the Constitution allows for precedent: Gary Lawson, Michael Paulsen, and Randy Barnett, to name just a few.

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Mike Rappaport
on May 17, 2012 at 19:40:22 pm

There is no place to comment on the PLF Liberty Blog, so I will just add something here. I do not rely on the judicial power as the source of precedent and it is not constitutionally binding. You might want to read my paper on the subject that I linked to. Rather, I argue that the constitution contemplates precedent as a common law rule. That rule is binding as a matter of common law, and Congress can supersede that common law rule.

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Mike Rappaport
on May 17, 2012 at 21:15:51 pm

Thanks for the reply, Professor Rappaport. But I still think you overstate the positions of those with whom you disagree. Here is a quote from each of the three scholars you mentioned....

"It turns out to be a bit of an overstatement to claim that the Supreme Court should never rely on past decisions in preference to direct, unmediated examination of the Constitution....Thus, the constitutional case against precedent is not absolute."

---Gary Lawson (2007)

"Precedent may serve legitimate informative functions, and may serve as a baseline against which departing decisions need to justify themselves...."
---Michael Paulsen (2008)

"In sum, I contend that while stare decisis is vitally important to the development of rules of private conduct in a common law system, it is far more problematic when interpreting a written constitution. In the latter situation, precedent can still play an epistemically role, placing some burden on a court to justify its departure from prior decisions."
---Randy Barnett (2012)

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Andrew Hyman
on May 17, 2012 at 21:18:46 pm

Epistemically >> epistemic

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Andrew Hyman
on June 09, 2012 at 15:04:03 pm

I have been making the Jacques Torres rpeice for the past few years, but yours is much tastier, has better texture, and is easier. Win, win, win! Thank you. I found that cooking at a higher elevation the addition of an extra egg yolk did the trick, and the cookies turned out crisp around the edges and chewy in the middle.

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Anthony
on December 29, 2012 at 23:40:30 pm

"THERE IS NO FEDERAL COMMON LAW, AND CONGRESS HAS NO POWER TO DECLARE SUBSTANTIVE RULES OF COMMON LAW applicable IN A STATE, WHETHER they be LOCAL or GENERAL in their nature, be they COMMERCIAL LAW or a part of LAW OF TORTS." (See: ERIE RAILROAD CO. vs. THOMPKINS, 304 U.S. 64, 82 L. Ed. 1188)

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DyingTruth

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