Originalism, Stare Decisis, and Constitutional Authority

This chapter examines the relationship among three normative questions about American constitutional law: How should the Constitution be interpreted? When may (or should) the Supreme Court overrule its own constitutional precedents? And why is the Constitution binding at all? The author begins by de-constructing the “special difficulty” with stare decisis that proponents of originalist interpretation often perceive. That difficulty, the author contends, can be ex-plained only by reference to some underlying normative theory of constitutional authority―of why the Constitution binds us in the first place. The author then as-sesses four extant accounts of constitutional authority to determine whether any of them implies both originalism and a distrust of stare decisis. While three such ac-counts (Values Imposition, Consent, and Moral Guidance) may support original-ism and reject stare decisis, none of these accounts is plausible. A fourth account (Dispute Resolution) is more plausible but implies neither strong originalism nor a rejection of stare decisis. Neither originalism nor distrust of precedent, therefore, appears to be supported by a plausible account of constitutional authority

What Lies Beneath: Interpretive Methodology, Constitutional Authority, and the Case of Originalism

It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes? This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because we disagree politically about the particular results of using one methodology versus another. The Article contends that methods of interpretation must be defended by reference to accounts of constitutional authority. It takes as its case in point the family of interpretive approaches known as originalism, which favors the resolution of constitutional issues according to a meaning fixed at the Framing. Originalism is an apt case study because it currently is ascendant in both academic theory and judicial practice and, not incidentally, because it often is suspected of being a cover for controversial political commitments. The Article illustrates the relationship between interpretation and authority by assessing the “natural rights” defense of an originalist Constitution offered by the influential New Originalist Randy Barnett. Barnett’s account fails, the Article contends, because it cannot explain the authority of the Constitution it purports to justify. But its failure underscores the centrality of authority to methods of interpretation. The Article then examines three general accounts of constitutional authority that might be thought to entail originalism. Accounts based on “consent” or “popular sovereignty,” while rhetorically appealing, lack any basis in the realities of modern society. Accounts based on what the Article terms “Moral Guidance” – the supposedly superior wisdom of the Framing process – are both descriptively implausible and conceptually problematic. Only accounts based on “Dispute Resolution,” such as the well-known “Footnote Four” approach from the Supreme Court’s Carolene Products decision, can overcome the fatal flaws of these other accounts. But Dispute Resolution can support only a selective, modest use of originalism. Originalists, then, are left with a choice, the Article concludes. They can moderate their interpretive methodology as the Footnote Four approach suggests. Or they can insist on thoroughgoing originalism – with nothing to back it up but the bare desire for politically controversial results

Persuasion: A Model of Majoritarianism as Adjudication

This article, which has been published in slightly revised form at 96 Nw. U.L. Rev. 1 (2001), is an application and extension of my theory of adjudication as representation, which holds that the procedural elements of litigant participation and interest representation confer democratic legitimacy on court decisions. In the article, I first develop the notion of a majoritarian difficulty : the often-ignored tension between democratic self-rule and majority domination of the political minority. Second, I offer a model of majoritarianism as a type of adjudication, in which interested parties lobby for favorable decisions by a neutral decisionmaker. Third, I contend that the majoritarian difficulty can be mitigated or resolved by understanding majority decisions as the products of meaningful participation, through persuasion, by both the winning and the losing parties. Finally, I use the model to explain two central claims of contemporary deliberative democratic theory: that a deliberative conception of politics is superior to a purely aggregative conception, and that public deliberation must proceed according to reasons that are acceptable to all the participants

Beyond the Constitution

A Review of Beyond the Constitution by Hadley Arke

Under-the-Table Overruling

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court\u27s practice of under-the-table overruling, or underruling, in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court underrules when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - suggested by the Court\u27s own account of constitutional stare decisis in Planned Parenthood v. Casey - superficially seems to support the practice of underruling, in fact it does not. Casey\u27s association of stare decisis with judicial legitimacy plausibly can be understood to reflect a broader account of the judicial function in constitutional cases, one focusing on the Court\u27s capacity to resolve certain disputes more acceptably than ordinary democratic politics. Underruling may serve this dispute-resolution function by preserving the appearance of the Court\u27s impartiality, although there is reason for doubt. But underruling frustrates the dispute-resolution function in another way: By obscuring the reality of what the Court is doing, it makes meaningful popular participation in constitutional decisionmaking more difficult

Outcomes, Reasons, and Equality

In this article, Christopher Peters responds to arguments made by Kenneth Simons in The Logic of Egalitarian Norms, 80 B.U. L. REV. 693 (2000), in which Professor Simons defends the normative value of equal treatment against Peters’s earlier critiques. Peters first explains and justifies his attack on deontological rather than consequentialist motivations for equal treatment. He then articulates a difference between two distinct conceptions of “treatment”: an outcome-focused and an holistic conception. Peters argues that the holistic conception must be accepted by anyone who defends a deontological theory of equality. Peters then explains how certain of Simons’s arguments in defense of deontological equality reflect either a mistaken reliance on an outcome-focused conception of treatments or a misunderstanding of the implications of an holistic conception

Outcomes, Reasons, and Equality

In this article, Christopher Peters responds to arguments made by Kenneth Simons in The Logic of Egalitarian Norms, 80 B.U. L. REV. 693 (2000), in which Professor Simons defends the normative value of equal treatment against Peters’s earlier critiques. Peters first explains and justifies his attack on deontological rather than consequentialist motivations for equal treatment. He then articulates a difference between two distinct conceptions of “treatment”: an outcome-focused and an holistic conception. Peters argues that the holistic conception must be accepted by anyone who defends a deontological theory of equality. Peters then explains how certain of Simons’s arguments in defense of deontological equality reflect either a mistaken reliance on an outcome-focused conception of treatments or a misunderstanding of the implications of an holistic conception

Adjudicative Speech and the First Amendment

While political speech - speech intended to influence political decisions - is afforded the highest protection under the First Amendment, adjudicative speech - speech intended to influence court decisions - is regularly and systematically constrained by rules of evidence, canons of professional ethics, judicial gag orders, and similar devices. Yet court decisions can be as important, both to the litigants and to society at large, as political decisions. How then can our practice of severely constraining adjudicative speech be justified as consistent with First Amendment principles? This Article attempts to answer that question in a way that is informative about both the adjudicative process and the nature of free speech under the First Amendment. I first explore, and reject, a number of possible theoretical justifications for the relative lack of protection afforded adjudicative speech. I then offer a more satisfactory explanation that relies in part on the connection between participation and political legitimacy. Restrictions on adjudicative speech, I argue, are necessary to preserve the opportunity for all litigants to fully and fairly participate in the decisionmaking process, and to maintain judicial subservience to general policies generated by processes (legislation, constitutional lawmaking, the common law) that are more politically legitimate than ad hoc judicial policymaking. I then apply this justification of adjudicative speech restrictions to several recent controversies involving adjudicative speech. I contend that Legal Services Corp. v. Velazquez, in which the Supreme Court invalidated a congressional ban on the use of Legal Services Corporation funds to challenge state welfare laws, was correctly decided; that court rules prohibiting the citation of unpublished opinions are unconstitutional; and that the Court was wrong to strike down Minnesota\u27s regulation of judicial campaign speech in Republican Party v. White. Finally, the Article concludes by suggesting that the constraints regularly imposed on adjudicative speech, designed to preserve the political legitimacy of adjudication, imply the propriety of similar constraints on political speech where necessary to preserve the legitimacy of democratic politics. Thus I suggest that the regulation of campaign funding, mass media, and hate speech might be justifiable as means of promoting full and fair participation in political life