Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
Jonathan Mitchell’s recent article on Stare Decisis and Constitutional Text has received some attention. See here for the article’s abstract and here for a short post on it. While I have not studied the article carefully, I have digested its basic argument. Mitchell argues that the Supremacy Clause only establishes that the Constitution, federal statutes, and treaties are supreme law of the land. While the Clause therefore requires that these sources of law take priority over nonsupreme sources, such as state law, Mitchell maintains that it does not specify any rule of priority as between these supreme types of law. Mitchell also argues that judicial precedents are conspicuously absent from the listed types of supreme law. Therefore, such precedents are nonsupreme law that cannot take priority over the Constitution, federal statutes, or federal treaties.
Because Mitchell concludes that the Constitution is silent as to which of the three types of supreme law takes priority, the Courts are entitled to choose to which one to give priority. When they choose one type over another (such as the Constitution over federal statutes), they are not acting unconstitutionally. However, they could have chosen a different order of priority (such as federal statutes over the Constitution).
From this, Mitchell reaches some pretty unusual conclusions:
First, the Supreme Court cannot strike down federal statutes as unconstitutional based on a precedent that erroneously interpreted the Constitution. That would place a nonsupreme law (precedent) over a supreme law (a federal statute). But the Court can uphold a federal statute based on an erroneous precedent. The Constitution and federal statute are tied as supreme laws and therefore the Court has discretion to pick which one to enforce.
Thus, the Supreme Court can choose to follow erroneous precedents that expanded the Commerce Power during the New Deal. But, if the application of the Equal Protection Clause to the federal government is erroneous, the Court cannot follow that precedent, because that would place a nonsupreme law (precedent) over a supreme law (a federal statute).
Second, the Supreme Court cannot uphold as constitutional a state law based on a precedent that erroneously interpreted the Constitution. But the Court can strike down a state law based on a precedent that erroneously interpreted the Constitution. Neither the state law or the precedent is supreme law, so they are on a par and the Court can pick to which one to give priority.
Thus, if Home Building and Loan v. Blaisdell is an erroneous precedent that mistakenly allows contract impairments, the Court cannot allow a state law that effects such an impairment. That would permit a nonsupreme law (state law) to take priority over a supreme law (the Constitution). But if Roe v. Wade is an erroneous precedent, the Court can strike down a state law that restricts abortion based on Roe. That would involve two nonsupreme laws (precedent and state law) and the Court could decide to which one to give priority.
This is pretty weird. The normal rule of priority is that the Constitution takes priority over federal statutes and treaties. There is some controversy as to whether federal statutes or treaties should take priority, but the most common position, I believe, is that they are of equivalent status and therefore the later enactment takes priority.
Despite the weirdness of Mitchell’s conclusions, they do seem to follow from his premises. It is the premises, however, that I disagree with. While I disagree with a great deal in Mitchell’s premises, I will restrict myself, in my next post, to just one aspect of his premises.