Trumping Precedent With Original Meaning: Not As Radical As It Sounds

Originalism was thought to be buried in the 1980s with critiques such as those by Paul Brest and Jeff Powell. Brest charged that originalism was unworkable, while Powell maintained that originalism was inconsistent with the original intentions of the Founders. Others raised the moral challenge of why we should be ruled by the dead hand of the past. Yet an originalist approach to interpretation has-like a phoenix from the ashes or Dracula from his grave, depending on your point of view-survived into the Twenty-first Century as an intellectual contender. Indeed, it has thrived like no other approach to interpretation

Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell\u27s careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions about the permissible uses of precedent. In brief, under Mitchell\u27s analysis, the Supremacy Clause forbids using precedent (1) to invalidate congressional statutes (because congressional statutes are the supreme law of the land while prior court decisions are not) or (2) to uphold constitutionally challenged state laws (because the Constitution is the supreme law of the land while prior court decisions and state-law interpretations of the Constitution are not). Yet, according to Mitchell, the Supremacy Clause does not forbid using precedent (3) to uphold congressional statutes (because both the Constitution and congressional statutes are equally supreme, and there is no constitutional mandate to prefer one to the other) or (4) to invalidate state laws (because neither prior court decisions nor state laws are supreme, and there is no constitutional mandate to prefer one to the other). The article is an eminently worthy contribution to a vibrant debate, and I am delighted to have the opportunity to respond to it-as well as to clarify some ambiguities in my own prior work on precedent

Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell\u27s careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions about the permissible uses of precedent. In brief, under Mitchell\u27s analysis, the Supremacy Clause forbids using precedent (1) to invalidate congressional statutes (because congressional statutes are the supreme law of the land while prior court decisions are not) or (2) to uphold constitutionally challenged state laws (because the Constitution is the supreme law of the land while prior court decisions and state-law interpretations of the Constitution are not). Yet, according to Mitchell, the Supremacy Clause does not forbid using precedent (3) to uphold congressional statutes (because both the Constitution and congressional statutes are equally supreme, and there is no constitutional mandate to prefer one to the other) or (4) to invalidate state laws (because neither prior court decisions nor state laws are supreme, and there is no constitutional mandate to prefer one to the other). The article is an eminently worthy contribution to a vibrant debate, and I am delighted to have the opportunity to respond to it-as well as to clarify some ambiguities in my own prior work on precedent

The Fiduciary Foundations of Federal Equal Protection

In Bolling v. Sharpe, the Supreme Court invalidated school segregation in the District of Columbia by inferring a broad “federal equal protection” principle from the Due Process Clause of the Fifth Amendment. It is often assumed that this principle is inconsistent with the Constitution’s original meaning and with “originalist” interpretation. This Article demonstrates, however, that a federal equal protection principle is not only consistent with the Constitution’s original meaning, but inherent in it. The Constitution was crafted as a fiduciary document of the kind that, under contemporaneous law, imposed on agents acting for more than one beneficiary – and on officials serving the general public – a well-established duty to serve all impartially. The Constitution, like other fiduciary instruments, imposes a standard of equal treatment from which lawmakers and officials cannot depart without reasonable cause. Although the Constitution’s original meaning does not precisely define the answers to all “equal protection” cases, and does not necessarily prescribe norms identical to those of existing equal protection jurisprudence, it clearly does prohibit racial discrimination of the kind at issue in Bolling

Dead Document Walking

As this symposium commences, originalism is a hot topic to discuss and a cool position to advocate. Either portion of that statement would have been nearly inconceivable two decades ago when I started in academia. Originalism at that time was something of an intellectual backwater, with a very limited set of adherents and an even more limited set of critics who were willing to take originalist ideas seriously.

An Interpretivist Agenda

As I write these words, bevies of law clerks assigned to cases involving the Bill of Rights are dutifully editing their bench memos for publication in the national reporter system. Once printed, these bench memos will be solemnly treated by lawyers, scholars, other law clerks, and the occasional judge who runs across them as legally significant, or even binding, interpretations of the Constitution. Two features of this burgeoning mass of otherwise unpublishable law review comments bear mention. First, most of them are tedious, tendentious, pretentious, and badly reasoned when reasoned at all, just as one would expect from authors who are one or two years out of law school. Second, many, if not most, of these law clerk opinions bear no visible relationship to the actual words of the Bill of Rights. In fact, it is possible to find opinions purportedly applying the Bill of Rights that never deem it necessary to quote the amendments supposedly at issue

Originalism Without Obligation

I am truly delighted that Boston University School of Law is hosting a conference on Abner Greene’s Against Obligation1 and Michael Seidman’s On Constitutional Disobedience. 2 Both books launch powerful and much-needed broadsides against the idea of a political obligation to obey the U.S. Constitution, and more generally (whether or not the authors embrace these implications) against the very idea of a political obligation to obey state authorities. I fully agree with both authors that the arguments normally made in favor of a duty of obedience to the Constitution, and by extension to state authorities of any kind, are remarkably – and one might even say transparently – weak.3 I rather suspect that everyone knows this but prefers not to talk about it too much in polite company

Did Justice Scalia Have a Theory of Interpretation?

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what Justice Scalia said, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation—the ascertainment of textual meaning—and adjudication—the determination of real-world cases— is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however, to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication

Are People in Federal Territories Part of “We the People of the United States”?

In 1820, a unanimous Supreme Court proclaimed: “The United States is the name given to our great republic, which is composed of states and territories.” While that key point is simple, and perhaps even obvious, the constitutional implications of interpreting “the United States” to include federal territories are potentially far reaching. In particular, the Constitution’s Preamble announces that the Constitution is authored by “We the People of the United States” and that the document is designed to “secure the Blessings of Liberty” to the author and its “Posterity.” If inhabitants of federal territory are among “We the People of the United States,” then federal actors owe them (and their “Posterity”) the same fiduciary duties owed to people in the States. There is no definitive answer regarding the original meaning of “We the People of the United States,” but the presumptive meaning of “the United States” in 1788 included federal territory, so the presumptive meaning of “the People of the United States” would similarly include people in federal territory. While there are strong textual and contextual arguments for excluding territorial inhabitants from “We the People,” there are also countervailing textual and contextual arguments for their inclusion. In the end, the answer may depend on something beyond the reach of interpretative theory: How strong is the presumption in favor of inclusion that can be drawn from pre-1788 understandings and practices? If territorial inhabitants are indeed among “We the People of the United States,” then federal action toward the territories must conform to fiduciary norms, including the key norm of impartiality with respect to multiple beneficiaries, which would require very strong reasons for disfavoring territorial inhabitants in comparison to state inhabitants