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The Greater Originalist: Scalia, Thomas, and the Legitimacy of Precedent

Tim Sandefur recently had a post up claiming that Justice Thomas is the greater originalist, not Justice Scalia (as Lee Strang had claimed).  I don’t necessarily disagree with Sandefur — I think that both Scalia and Thomas have their virtues.  But I do strongly disagree with one aspect of Sandefur’s post where he says:

But if originalism means anything, it means that the Constitution has a meaning, and that it’s possible for courts to get that meaning wrong, and between those two—following the wrongly decided precedent or following the Constitution’s actual meaning—a judge must choose the latter. One can disagree with this approach, but it’s logically valid. On the contrary, I know of no evidence that the framers believed that precedents should be clung to even where it contradicts the Constitution’s meaning.

(emphasis added).  Well, I do know of some evidence that the Framers believed that precedents both would and should be followed as to the Constitution.  I discuss it in this article (co-authored with John McGinnis), where we show that precedent was a widely followed practice of long-standing within the Anglo-American legal system at the time of the Constitution, that several Framers anticipated it would be applied to the Constitution, that no Framer argued it would not be applied to the document, and that it was applied in the early years under the Constitution.  We also explain the textual basis for following precedent.

While I believe that certain precedent rules should be applied to the Constitution, that does not mean that all precedent approaches are equally legitimate.  Justice Scalia has been criticized for not adopting a consistent approach to following precedent and that may be true.  But the claim that all precedent is unconstitutional or illegitimate is, in my view, quite mistaken.

Reader Discussion

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on May 08, 2012 at 13:13:35 pm

I went and skimmed over the Rappaport-McGinnis article, and have some concerns about it.

Suppose that the Court had based the Griswold decision on the Appointments Clause. That would be the grossest and most deliberate misinterpretation of the Constitution, and a deliberate usurpation of power. But the McGinnis-Rappaport theory would seem to require current justices to respect that decision if it meets various other criteria. Is that correct?

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Andrew Hyman
on May 08, 2012 at 15:19:52 pm

I see at page 41 of the article that uncertainty about the Constitution's original meaning is acknowledged as a significant factor. Well, I would think that if there is certainty that the Constitution did not mean what a SCOTUS opinion says it means, then stare decisis should be entirely inapplicable. I am still curious about the answer to my Appointments Clause question.

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Andrew Hyman
on May 08, 2012 at 19:37:13 pm

Under my theory, if a precedent is entrenched -- if it is so widely approved of that it has comparable support to that of a constitutional amendment -- it should be applied. So your appointments clause example, if it had that level of support, should be enforced. The people's approval cures whatever problems we might believe the precedent has.

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Mike Rappaport
on May 09, 2012 at 11:08:43 am

If the judges are capable of extracting the Griswold decision from the Appointments Clause, then they are likewise capable of extracting a fake overwhelming national consensus from whatever tea leaves they examine. Acknowledging such a power in SCOTUS to effectively amend the Constitution would be a huge mistake, in my opinion. They could just as easily give false meaning to statutes, both state and federal.

Moreover, if everyone's goal is to effectuate national consensus, then it is well worth considering how the American people feel about the following poll question: "Should SCOTUS ever deliberately disregard or misinterpret the 100% clear and certain meaning of the Constitution (such as the provision limiting a president to two terms), and do so without any explicit approval of Congress or the American people?" I would think that the poll result would be overwhelmingly negative.

Part of the basic problem here is that the American people, not unlike the people of Greece during their ongoing financial crisis, want it both ways. Americans want the Supreme Court to follow the Constitution, but to also follow policies that they happen to agree with (just like Greeks want to keep the Euro while paying low taxes and continue receiving generous entitlements).

It also seems to me that it is somewhat inaccurate to suggest that people who support adhering to the Constitution when it is 100% clear are somehow denying the validity of precedent and stare decisis. Actually, one can easily support precedent and stare decisis when the true constitutional meaning is less than certain.

One of the main reasons why judges serve for life is so they will not be concerned about popular disgust when the judges follow the Constitution instead of popular sentiment, so it seems very odd to ask SCOTUS to not only follow popular sentiment instead, but also to accurately gauge the precise level of popular sentiment.

I am not supporting overturning cases like Brown v. Board of Education. That seems like a straw man. Even staunch originalists like Robert Bork have explained that Brown was consistent with the original meaning of the Equal Protection Clause. So, obviously, there is no 100% certainty that Bork is wrong about that.

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Andrew Hyman
on May 09, 2012 at 11:49:49 am

P.S. Maybe the best way for SCOTUS to deal with public relations would be to not say "We reverse BOGUS DECISION X" but instead say "We affirm BOGUS DECISION X unless legislators fail within one year to legitimize it by constitutional amendment."

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Andrew Hyman
on May 09, 2012 at 13:44:59 pm

Just curious, Prof. R.--How would you differentiate your approach from "bargaining away the police power"? The premise of Stone v. Mississippi, and so forth, is that the people retain sovereignty, so the legislature lacks authority to make a binding promise as to how that sovereignty will be exercised in the future. This prohibition on entrenchment arises from the nature of legislative authority under a written constitution: the legislators exercise delegated authority only, so they cannot bind their principals (the people) in ways that go beyond that delegation. But the same is true of judges: they exercise delegated authority to interpret the laws. To bind the judges to previous precedent when it's become entrenched seems to me to limit the people's sovereignty in an analogous way. It says that even in cases where the people, dissatisfied by the justices' previous interpretations of their (the peoples') fundamental law, and replace those justices with new appointees, the new appointees are still bound by the bad prior interpretations. Surely it can't be true that Salmon Chase was bound by Dred Scott!

Prof. H--I think there's a difference (in degree, not in kind) in the Court's evaluation of public sentiment and the way the other branches do this. They run at different speeds, the way the logs, the alligators, and the turtles ran at different speeds in the old Frogger video game. It's proper for the Court to evaluate public sentiment--but not fleeting public sentiment. Or, at least, that seems to me to be an acceptable position for an originalist to take.

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Timothy Sandefur
on May 09, 2012 at 16:08:22 pm

Mr. Sandefur, thank you for the title of nobility, but I am happily not a professor. :-)

If I thought that SCOTUS could faithfully divine whether the public and legislators would support a constitutional amendment, then I would have no problem supporting Professor Rappaport's theory. The whole rigamarole of ratification would be pointless. But I do not trust that SCOTUS could or would reliably perform that function. Anyway, if such a strong consensus really exists, then it is harmless to require that Article V be employed.

By the way, Mr. Sandefur, did you get my email? You're cited in my recently accepted law review article (at Seton Hall). And you can call me Andrew. :-)

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Andrew Hyman
on May 10, 2012 at 01:02:26 am

Yes I did, thank you!

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Timothy Sandefur
on June 09, 2012 at 14:51:22 pm

, Doug. That is precisely why I was sgniestgug a new way to look at who we are. We shouldn't be any more wedded to "conservative" than the Left wishes to be to "liberal." There isn't a damn thing about the political system in this country, as it currently exists, that is worth conserving anymore anyway.Just as I am not stuck on libertarian... I prefer Objectivist; but then you have to explain that term, and anyone who has read Leonard Peikoff knows how bloody esoteric that can get. I suggest "Constitutionalist." Isn't that what we wish we could return to, our Constitution? It has a familiar ring; most folks would at least think they know what is meant by the term; and it would be pretty hard to demonize it. There is no religious baggage that goes along with it, and it is the antithesis of government solutions to individual travails. We could sidestep such thorny issues as abortion, by simply declaring the subject extra-Constitutional and therefore outside the purview of our politics.I know there have been attempts to form a "Constitution Party," and I have no idea what became of such; but we are talking about "Constitutionalists" (instead of "conservatives") wresting control of the Republican Party from the preachers and Rockefeller types. They can join us as is without their silly litmus tests, or go caucus with their altruistic brethren on the Marxist side. I'd trade them both for the solid working class families stuck in the unions, AKA the Truman and Reagan Democrats that belong with us anyway. Dave

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Atillahan
on June 09, 2012 at 18:35:20 pm

The MSM is currently dnicdieg for the masses what "conservative" means, you know.Listen to yourself. "The masses." Bah! Purge that word from your lexicon! It is insulting. The "masses" are 300 million free individuals who will make up their own minds. I have faith in the American people, and in the ability of free people to make up their own minds. As soon as you stop respecting the people, you might as well throw in with the dictators.No - the communication problems are much less than the lies of the MSM. The problem is that we haven't had a political leader who could cogently articulate Conservative Principles since Newt Gingrich, and Reagan before him. It is OUR fault. WE are responsible. As soon as we accept that, then WE can overcome. The task before us is one of salesmanship - and then partaking of our own product. Unlike the hippies, we don't have to lie to sell our principles. We DO, however, have to explain them in a way people NOT obsessed with political theory can understand.Running from the word "conservative" because Chris Matthews has declared it dirty is a retreat we will never recover from. It is inexorably tied to "Republican." "Constitutionalist" , and I want no part of that - talk about assuring irrelevancy.

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Abby
on June 12, 2012 at 00:56:21 am

Okay so the Same Sex Marriage Law passed in California was found to vlioate the Constitution of California.So now Proposition 8 just passed and the citizens of California are adding a Constitutional Amendment stating the exact same thing that the unconstitutional law did.Thus your answer is now wrong.What CA found unconstitutional in law due to the equal protection clause they are adding as a constitutional amendment which now conflicts with another part of the CA Constitution.

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Michalina

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.