Justice Scalia and How Originalism Fits into the Fabric of the Law

In my last post, I explored whether Justice Scalia was an old or a new originalist, concluding that he was a new originalist in one way, but an old originalist in another way.  In this post, I want to look at another way that Scalia advocated an older type originalism.

One feature of newer originalist theories is that they have focused on how originalism fits into the law more generally.  The most significant example of this involves the theory of precedent.  It is well known that some originalists reject precedent, while others allow for it.  But the more fundamental theoretical question is why.

Justice Scalia accepted precedent.  In fact, he sometimes poked fun or criticized his co-originalist, Justice Thomas, by claiming that Thomas did not believe in precedent.  I am not sure that Scalia was correct, but it is clear that he accepted precedent.

But Scalia’s approach to precedent was unsatisfactory.  One problem was that he did not explain the circumstances when he would follow and when he would not follow precedent.  As a result, Scalia was open to the charge that he followed precedent based on his evaluation of the results.

But another problem with Scalia’s approach is that he did not describe what kind of law precedent is.  Put differently, why is it ok to follow precedent?  Is precedent based on the constitution, on statute, or common law?

Some of the newest originalist theories answer these questions.  Some people, like Lee Strang, argue that precedent is required by the judicial power.  Other people, like Gary Lawson, argue that the Constitution forbids precedent.  And others – like John Harrison and John McGinnis and I – argue that the Constitution allows for precedent as a matter of general common law and statute.  Under this latter view, the Constitution does not require or forbid precedent, but assumes that it will be established by the common law or by statute.

I am not aware that Scalia even thought about this question (although he may have).  But to my knowledge, he did not address it.  I am not finding fault here.  He had other fish to fry, coming earlier in the modern development of originalism.  But his approach was nonetheless incomplete.

Another issue is what kind of law governs the interpretation of the Constitution.  Here again I am not aware of Scalia addressing this issue.  (Scalia did address the type of law governing statutory interpretation a bit, claiming that the use of legislative history was unconstitutional, but I think he was mistaken here.)  But the most recent theories of originalism do address these questions, including those of Baude and Sachs and of McGinnis and Rappaport.  Since this is a complicated question, I will discuss it in a separate post in the future.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 22, 2017 at 11:30:03 am

Might it not also be advanced that the Constitution is merely a codification of precedent, originating in natural law?

As such, how could the Constitution reject precedent?

[Please Miss Creant LawDog, go gentle on me, I haven't been well. ;-)]

read full comment
Image of Paul Bintto
Paul Bintto
on September 22, 2017 at 12:22:39 pm

What disturbs me is that the unwillingness to overturn a "flawed" precedent effectively engenders / sustains a "Living constitution" In this I agree with LawDog that Scalia, for whatever reason, proved unworthy of the task.

read full comment
Image of gabe
on September 22, 2017 at 12:31:27 pm

Mr. Gabe,

I can't speak to Scalia, but I do agree, its a flawed jurisprudence that perpetuates bad precedent.

read full comment
Image of Paul Binotto
Paul Binotto
on September 23, 2017 at 10:02:02 am

Paul, think of stare decisis as a corset, as opposed to a straight-jacket.

The Framers made no effort to define the Article III “judicial Power” because they didn’t have to. Lord Bacon observed that the office of a judge "is jus dicere, and not jus dare; to interpret law, and not to make law, or give law." Francis Bacon, Essays LVI (Of Judicature) (1620). Edward Gibbon observed in his magnum opus on the Roman Empire that “the discretion of the judge is the first engine of tyranny.” 1 Edward Gibbon, The History of the Decline and Fall of the Roman Empire 97 (ed. M.F. Guizot, 1844) (1776) (emphasis added). Blackstone maintained that the judge was "sworn to determine, not according to his own judgments, but according to the known laws." 1 Blackstone, Commentaries at 69. A century earlier, Lord Coke wrote, "[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion." 1 E. Coke, Institutes of the Lawes of England 51 (1644). Hamilton added that, to “avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them.” The Federalist No. 78, 470 (Alexander Hamilton) (I. Kramnick ed. 1987). Thomas Jefferson saw the judge as “a mere machine,” expecting that the law “be dispensed equally & impartially to every description of men.” Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776. As in all but the most exotic cases, the “law” is established, the judge was expected to be little more than an administrator, playing what Professor Llewellyn called “the game of matching cases.” Karl Llewellyn, The Bramble Bush 49 (1960).

"The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed."

Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an "inexorable command," and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405-411 (1932) (Brandeis, J., dissenting)." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854 (1992).

Whereas the Constitution itself is effectively "trapped in amber," judicial decisions are simply the edicts of men who are endowed with judgment, not will. lf a previous decision is indefensible, it shouldn't be followed ... but our judges should have the humility, percipience, and good judgment to ask whether they may not be in the wrong.

Bottom line, if a precedent cannot be squared with COTUS, it cannot and should not be followed.

read full comment
Image of Miss Creant
Miss Creant
on September 23, 2017 at 12:50:27 pm

"But Scalia’s approach to precedent was unsatisfactory. One problem was that he did not explain the circumstances when he would follow and when he would not follow precedent. As a result, Scalia was open to the charge that he followed precedent based on his evaluation of the results."

More like, this charge was proven conclusively in his jurisprudence. lf he liked the outcome--even when he KNEW that it was wrong--he refused to disturb it. E.g., Alden v. Maine; cf., Antonin Scalia, Historical Anomalies in Administrative
Law, Y.B. Supreme Court Hist. Soc’y. 103, 104 (1985) (domestic sovereign immunity not part of the English common law
known to the Framers). And when he didn't like the plain text of a statute or Congressional findings of fact, he rewrote them. E.g., Bruesewitz; Shelby County. But when he hates an outcome that originalism fairly dictates, he would rather gnaw his arm off than apply it. E.g., Obergefell.

lt might be more accurate to say that Scalia was really a Living Constitutionalist, who merely played an originalist on the rubber chicken circuit. On the bench, he treated originalism like a low-rent streetwalker--abusing her for his purposes and then, dropping her off on the corner when he was done. Or, he was one of Kagan's "Platonic Guardians," dispensing naked ukases under the color of law.

read full comment
Image of Miss Creant
Miss Creant
on September 23, 2017 at 13:41:34 pm

"But another problem with Scalia’s approach is that he did not describe what kind of law precedent is. Put differently, why is it ok to follow precedent? Is precedent based on the constitution, on statute, or common law?"

There are two flavors of precedent: matters actually decided, and canons of construction. The latter involves the "strict rules" Hamilton referred to, which are ultimately rules of reason. which Judge Roberts has described as “precedent on precedents.” By way of example, speaking for the Court, Justice Thomas emphatically declared that "a court should always turn first to one cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then this first canon is also the last: ‘judicial inquiry is complete.’" Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (quotations omitted; collecting cases).

These rules of construction, often older than the Nation itself, are the rails of rational jurisprudence. “Courts are the mere instruments of the law, and can will nothing.” Osborn v. Bank of the United States, 22 U.S. 738, 866 (1824). “It is the duty of the court to give effect, if possible, to every clause and word of a statute.” Montclair v. Ramsdell, 107 U.S. 147, 152 (1883). A constitutional provision “should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed." Jarrolt v. Moberly, 103 U.S. 580, 586 (1880). There are precedents for every proposition in the common law.

The rationale for following regular precedent is grounded in the natural law concept of equal justice under law. Scalia writes:

"Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions—no television in the afternoon, or no television in the evening, or even no television at all. But try to let one brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense of justice unleashed. The Equal Protection Clause epitomizes justice more than any other provision of the Constitution. And the trouble with the discretion-conferring approach to judicial law making is that it does not satisfy this sense of justice very well. When a case is accorded a different disposition from an earlier one, it is important, if the system of justice is to be respected, not only that the later case be different, but that it be seen to be so."

Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178 (1989) (emphasis added).

The theory behind adherence to precedent is more pragmatic. lt is presumed that, if they are doing it right, judges will follow the same path to reach the same result, without fail. As such, rather than re-invent the wheel, the second court simply steals the other court's reasoning, and picks up where they left off. ln the real world, courts don't often leave a clear, articulable, or defensible path to follow. As Judge Boggs of the Sixth Circuit accurately points out, in a common law system, words aren’t precedent; decisions are. Danny J. Boggs & Brian P. Brooks, Unpublished Opinions and the Nature of Precedent, 4 Green Bag 2d 17, 17 (2000).

This creates a sort of hierarchy. The decision itself is "binding precedent," which can only be deviated from where there is an articulable basis for doing so (bold-type in Scalia quote). The steps the earlier court took--the ratio decedendi--to reach the conclusion is also "binding," to the extent that they carry persuasive force. Everything else is obiter dictum, carrying no force. In a classic exposition of this point, Chief Justice Marshall writes:

"It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."

Cohens v. Virginia, 19 U.S. 264, 400-01 (1821) (emphasis added).

This principle is proven largely by stating the obverse. Precedent creates a reliance interest; as the primary purpose of lawyering is to keep your clients OUT of court, you want to be able to arrange their affairs in such a way as to obviate a need to patronize the Court. lf one court said "X" on Tuesday, and another said "not X" on Thursday, you would have no way of conforming your behavior to the law--which could be catastrophic in criminal matters. And if the courts said "X" in 59 straight cases before saying "not X" in yours, you would have the right to feel that you were treated unfairly.

Law profs have a nasty habit of trying to over-think this, in a quixotic search for a unified field theory. But that's what they kind-of get paid for.... :)

read full comment
Image of Miss Creant
Miss Creant
on September 23, 2017 at 14:06:14 pm

lf l might add, Paul, respect for precedent lS the child of natural law. l developed this point in detail below, and hope that it is illuminating for you.

read full comment
Image of Miss Creant
Miss Creant
on September 24, 2017 at 11:12:38 am

Heck if Einstein couldn't find a unified field, how can some silly law professor outshine the fuzzy haired one?

I understand it is easier in Law to make things up - whereas the Fuzzy Haired one did have to stick to actual observations. Did Einstein get paid more? - he should have!

read full comment
Image of gabe
on September 24, 2017 at 15:00:03 pm

As you've probably surmised by now, l am an unabashed disciple of Barnett and Solum--my beef with Scalia was that he wasn't faithful enough to the originalist principles he espoused. l see law as a logic problem, and have no qualms about it yielding answers l might not prefer.

A case in point is the conclusion that Lincoln, acting illegally, caused our Civil War. lt goes against everything we were taught, but the controlling law is clear.

l agree with Professor Dworkin in principle: that proper application of the law produces one right answer. You have to start with natural law (l embrace Locke because l can articulate/defend it using self-evident principles), navigate both common and international law (they provide the language), and view COTUS through that lens. But l concede that there are a few odd exceptions to that rule.

Law profs refuse to make that concession. lt's like climate scientists, debating the finer points of global warming: they all agree on the core fact of AGW, but squabble about discrete effects. Profs Mac and Mike both seem to be intent on rehabbing Scalia, but for reasons stated, l think his list of sins was too far extensive for absolution.

read full comment
Image of Miss Creant
Miss Creant

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.