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Whelan on McGinnis and Rappaport’s Originalism and the Good Constitution: Part II — Precedent

(This post is written jointly by John McGinnis and Mike Rappaport)

Ed Whalen objects to the treatment of precedent in our book Originalism and the Good Constitution. First, he questions our conclusion that Article III’s grant of judicial power provides authority for judges to apply precedent rules in constitutional decisionmaking. While he does not dispute our evidence that at the time of the Framing judges routinely applied rules of precedent in decisions interpreting legal texts, he says that this is no reason to suggest that this power encompasses constitutional precedents, because the legislature cannot overrule erroneous constitutional precedents, as it can erroneous statutory precedents.

But our book provides substantial evidence that the Framing generation, including many of its greatest figures, assumed that precedent would apply in the constitutional context as well. No one to our knowledge ever distinguished precedent in the statutory and constitutional context. While Ed correctly notes that constitutional precedent and statutory precedent have different consequences in some respects, the job of the originalist is not to determine for himself the best legal principles but to recover the content of the principles as they were understood at the time of enactment. And while undoubtedly errors can be more costly in the constitutional context, overruling them can also be more costly. Thus, the Framers’ recognition of precedent in the constitutional context cannot be said to be obviously foolish.

Second, Ed describes what he sees as alternative to our rules for reconciling precedent and originalism. Instead of respecting settled precedents, like those approving paper money, which it would be enormously costly to overrule, Ed suggests that the Court overrule such precedents while staying the effect of its decision to give the nation time to pass a constitutional amendment. With respect, we do not think this radical innovation is at all plausible. Courts lack any rule or indeed any legal calculus to decide the length of such an unprecedented stay. Moreover, forcing people to pass an amendment to enact what settled principles with enormous support would be at best annoying and would hardly advance originalism. Perhaps most worryingly, the time limit Ed introduces would encourage holdouts. The need to pass an amendment confirming paper money might well make the battle over the debt ceiling look like the deliberations over National Mothers Appreciation Day.

Our book shows how originalism is compatible with precedent and yet permits originalism to have a generative force that precedent does not. That is not only the Framers vision but the best way to make originalism a winning theory of interpretation.

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on November 03, 2013 at 11:15:11 am

I have read both of your postings of I&II, and Whelan’s postings regarding your book. Whelan’s (latest) Oct. 30th “presented two sets of objections and reservations, one on (your) broad normative justification of originalism, the other on (your) theory of precedent. … But rather than extend the back-and-forth here, (he’d) leave it to interested readers to assess the competing arguments”.
(I have not read your book, as yet) I would like to offer an assessment on “the competing arguments”.
I am not going to get into Whelan’s “competing arguments", because you have made your posting statements regarding him – and I respect your statements.
(You mentioned: “No one to our knowledge ever distinguished precedent in the statutory and constitutional context.” Refer Raoul Berger (1). You will find innumerable references there.)
My problem is w/Originalism, itself, in, not only your posting here, but in other postings. I find that Originalism, presently, does not contain the full arguments of Constitutionalism. I will, respectfully, endeavour to explain herewith.
You both have forcefully referred to the Constitution regarding “exceptions” as attributing them as they are constitutionally enumerated. In this area I compliment you both. Yet, Mike has indicated in a previous posting that he could accept “incorporation” in certain “precedents”. We are saddled with Justice Hugo Black’s “incorporation” of the Establishment Clause of the First Amendment – Into the Fourteenth, -- as "precedent" to “settled law”, by the Judiciary (2). The enumeration in the Constitution says otherwise, that the Judiciary is to “be bound by Oath or Affirmation, to support this (enumerated) Constitution.” Here, Originalism partakes itself to “acceptance” beyond the Constitutional enumeration of – “prohibiting” the federal government -- from this encroachment and usurpation -- of the “free exercise (of religion)”. Reference is made to Justice Iredel: “A Congressional usurpation can be set aside by the Court; a judicial usurpation, as Hamilton stated, can be met by impeachment”(3) .
Respectfully, John
1.Government by Judiciary, The Transformation of the Fourteenth Amendment.
2. Everson v Board of Education
3. iBid notation, Berger, Pg 317

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John E. Jenkins

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