Originalists Need a Distinctive Theory of Precedent

Courthouse Pillars

Courthouse Pillars

In Comptroller v. Wynne, the Supreme Court this week invalidated a Maryland tax on the basis of the dormant commerce clause, despite claims by Justice Antonin Scalia and Justice Clarence Thomas in dissent that the dormant commerce clause is not grounded in the original meaning of the Constitution. Michael Greve celebrated the majority’s choice to follow long established dormant commerce clause precedent and implicitly suggested that Wynne provides evidence that originalism is an implausible and even futile interpretive theory.

Michael is half-right. Originalism is certainly an inadequate theory if it cannot find a principled approach to precedent, like that on which the Wynn majority relied. Certainly, it is not politically possible for the Court to discard settled precedent when to do so would have enormous costs for society or when the precedents have become as accepted as constitutional provisions themselves. But, as Mike Rappaport and I have argued, the Constitution contemplates that justices will follow precedent. Moreover, sensible precedent rules are available that preserve the bite of originalism and still permit the Court to affirm a substantial number of well-established precedents.

Thus, my criticism of the opinions in Wynne is quite different from Michael’s. None of the justices offer an adequate reconciliation of originalism and precedent. Characteristically, Justice Thomas is untroubled by the enormous amount of precedent on the dormant commerce clause that his opinion rejects, but he has never shown why originalism must wholly reject the relevance of precedents. Justice Scalia accepted some precedent in the case—the notion that state laws that are facially discriminatory against citizens of others states are unconstitutional—but rejected the more flexible dormant commerce doctrine that the Court has long employed. His approach to precedent here is also characteristic– characteristically ad hoc. He has never found rules for precedent that are integrated with his theory of originalism rather than with his jurisprudential desire for clear rules.

Justice Samuel Alito’s opinion was no better in its analysis of precedent and original meaning. (Incidentally, I disagree with Michael’s characterization of Justice Alito as an “unabashed  originalist.”  It is at best unclear how far he adheres to originalism). Justice Alito was content to note that the dormant commerce clause can be traced back to some dicta in Chief Justice John Marshall’s opinion in Gibbons v. Ogden and has been followed in scores of opinions. These correct observations do not offer a rule for precedent that best advances originalism.

But I am not faulting the justices alone. Originalist scholars have not devoted as much attention as they should to determining the content of such rules.  If originalism is going to be successful, let alone persuade Michael of its merits, a lot more work needs to be done. A mature orginalism is an orginalism that comes to terms with precedent.

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on May 22, 2015 at 09:47:04 am

[…] Originalists Need a Distinctive Theory of Precedent […]

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Mad Men and the American Consciousness - Freedom's Floodgates
on September 23, 2020 at 16:08:15 pm

John McGuiness attempts, in Originalists Need a Distinctive Theory of Precedent, to clarify a distinction between the American Constitutional thinking for a Republic without stressing the importance of the Constitutions of the original three Commonwealth States. These were Virginia, Pennsylvania, and Massachusetts. I would refer to these Commonwealth Constitutions as prototype constitutions for Jeffersonian State Democracies. When one traces the authors of these Pre-Federal Constitutional documents, one finds Thomas Jefferson’s independence section along with George Mason’s Bill of Rights within the Virginia Commonwealth Constitution. Other authors were Ben Franklin of Pennsylvania and John Adams of Massachusetts. Now we have three members of the Committee of five that wrote the Declaration of Independence. Since these men also served as ambassadors to the world, their explanations for their documents in France, England, and the Netherlands would be best described as American Exceptionalism, or the reintroduction of the Commonwealth-man to the world.
The writings of 1776-1780 would tie these papers to the Commonwealth men of the English Civil War of 1640-1660, which included returning New Englanders to fight in the English Civil War. Harvard historian Bernard Bailyn has created the history of the Atlantic Civilization, which dealt with interactions between the families of merchants in England negotiating ties to Massachusetts and Connecticut, and the Caribbean, like at Winthrop Bay, Antigua through the sons of John Winthrop. Governor John Winthrop wrote the Body of Liberties of 1641-49 for the new Massachusetts colony and was previously mentored by Sir Edward Coke. Winthrop’s in-laws and relatives in England were London based. More to the point, the Massachusetts colonists returned to England to fight in the Independent Regiments and were to be known commonly as Levelers whose product was the Agreement of the People of 1647. This document was built upon the writings of Sir Edward Coke, whose writings began in the Tudor Period and lasted through two Jacobean Period Kings. Later, the writers of the Declaration of Independence and the original Virginian Bill of Rights were voracious readers of the works of Coke, both found in libraries like the Franklin Philadelphia Library or the Harvard Library or personal library collections such as by George Mason or Princeton graduate Lighthorse Harry Lee, the guardian of Valley Forge.
To study ideas, one has to study the personal interactions the men writing them down. The Marquis de Lafayette was given future President James Monroe to be his interpreter on arriving in the United States. Monroe and his friends became lawyers after their experiences at Valley Forge in 1777-78 as they discussed future constitutionalism in the United States and France. These friends were the future Federalist Alexander Hamilton, future Federalist and Supreme Court Justice James Marshall, future Democrat Aaron Burr, and the self-educated co-writer of the French Declaration of the Rights of Man in 1789, the Marquis de Lafayette. Their mentor was Gen. George Washington at Valley Forge. James Monroe was to study law under Jefferson and his ideas of democracy personally. Monroe was a whip for Patrick Henry and George Mason for the anti-Federalists at the Virginia Convention to approve the Constitution. Monroe, as well as Jefferson, were authors of the Northwest Territorial Ordinances. He was also wait-listed for the Constitutional Convention in Philadelphia with the Virginia delegation. Hamilton was assigned by Chairman George Washington to be on all the select committees, when not away from the Convention. Hamilton’s writings form an Unwritten, British style, additional Constitution for the United States.
Today, the handwriting and presence of Ambassador Thomas Jefferson are recognized to be at the side of the writer of the 1789 French Declaration of the Rights of Man, the Marquis de Lafayette. Recognized for his services, in writing with others the 1795 Declaration of the Rights and Duties of Man and Citizens of Year III, was Ambassador to France, James Monroe, gifted with the only dual French and American Citizenship for the next 100 plus years. Later Monroe became the world’s greatest real estate broker in purchasing the Louisiana Territories from another 1799 French Constitution writer, Napoleon, who considered himself the French, George Washington.
Above is a history of originalism in Constitutional interpretation by well-known historical figures. The absence of this knowledge would leave a gap of precedents in American Constitutional history. Should we not consider the above actors in American and French history as Social Justice Warriors? Indeed, they dealt with equality with many ideas like primogeniture for Jefferson, risk management for Hamilton with work for banks, insurance companies, and stock markets, free public education for Monroe and Jefferson in their quest in select states, which included the West Point Academy. Lafayette, James Monroe, and John Marshall probably met at the White House to celebrate the American Tour of Maj. Gen. Lafayette, then the oldest living general of the American Revolution in 1824-25. Alexis de Tocqueville would write his Democracy in America of 1831 that honored the work of, but not these living men by name, who had produced the Era of Good Feeling. Perhaps, now like Martin Luther, I have nailed this thesis on originalism to the wall of precedents in constitutional history.

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