The structure of government the Founders of this nation intended most certainly did not give courts a political role. The debates surrounding the Constitution focused much more upon theories of representation than upon the judiciary, which was thought to be a comparatively insignificant branch. There were, however, repeated attempts at the Constitutional Convention in Philadelphia to give judges a policymaking role. The plan of the Virginia delegation, which, amended and expanded, ultimately became the Constitution of the United States, included a proposal that the new national legislature be controlled by placing a veto power in a Council of Revision consisting of the executive and “a convenient number of the National Judiciary.”18 That proposal was raised four times and defeated each time. Among the reasons, as reported in James Madison’s notes, was the objection raised by Elbridge Gerry of Massachusetts that it “was quite foreign from the nature of ye. office to make them judges of policy of public measures.”19 Rufus King, also of Massachusetts, added that judges should “expound the law as it should come before them, free from the bias of having participated in its formation.”20 Judges who create new constitutional rights are judges of the policy of public measures and are biased by having participated in the policy’s formation.
The intention of the Convention was accurately described by Alexander Hamilton in The Federalist No. 78: “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”21 The political rights of the Constitution are, of course, the rights that make up democratic self-government. Hamilton obviously did not anticipate a judiciary that would injure those rights by adding to the list of subjects that were removed from democratic control. Thus, he could say that the courts were “beyond comparison the weakest of the three departments of power,” and he appended a quotation from the “celebrated Montesquieu”: “Of the three powers above mentioned [the others being the legislative and the executive], the JUDICIARY is next to nothing.” This is true because judges were, as King said, merely to “expound” law made by others.
Even if evidence of what the founders thought about the judicial role were unavailable, we would have to adopt the rule that judges must stick to the original meaning of the Constitution’s words. If that method of interpretation were not common in the law, if James Madison and Justice Joseph Story had never endorsed it, if Chief Justice John Marshall had rejected it, we would have to invent the approach of original understanding in order to save the constitutional design. No other method of constitutional adjudication can confine courts to a defined sphere of authority and thus prevent them from assuming powers whose exercise alters, perhaps radically, the design of the American Republic. The philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.
The Claims of Precedent and the Original Understanding
The question of precedent is particularly important because, as Professor Henry Monaghan of Columbia University law school notes, "much of the existing constitutional order is at variance with what we know of the original understanding.”22 Some commentators have argued from this obvious truth that the approach of original understanding is impossible or fatally compromised, since they suppose it would require the Court to declare paper money unconstitutional and overturn the centralization accomplished by abandoning restrictions on congressional powers during the New Deal.23 There is in these instances a great gap between the original understanding of the constitutional structure and where the nation stands now. But the conclusion does not follow. To suppose that it does is to confuse the descriptive with the normative. To say that prior courts have allowed, or initiated, deformations of the Constitution is not enough to create a warrant for present and future courts to do the same thing.
All serious constitutional theory centers upon the duties of judges, and that comes down to the question: What should the judge decide in the case now before him? Obviously, an originalist judge should not deform the Constitution further. Just as obviously, he should not attempt to undo all mistakes made in the past. Whatever might have been the proper ruling shortly after the Civil War, if a judge today were to decide that paper money is unconstitutional, we would think he ought to be accompanied not by a law clerk but by a guardian. At the center of the philosophy of original understanding, therefore, must stand some idea of when the judge is bound by prior decisions and when he is not.24
Many people have the notion that following precedent (sometimes called the doctrine of stare decisis) is an ironclad rule. It is not, and never has been.25 As Justice Felix Frankfurter once explained, “stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.”26 Thus, in Justice Powell’s words, “[i]t is … not only [the Court’s] prerogative but also [its] duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question.”27 The Supreme Court frequently over-rules its own precedent. In 1870, Hepburn v. Griswold28 held it unconstitutional to make paper money legal tender for antecedent debts, but in 1871 Hepburn was overruled in the Legal Tender Cases.29 The New Deal Court swiftly began overruling or ignoring precedent, some of it of fifty years’ standing, and often did so by five-to-four votes. Indeed, the Court has overruled important precedent in cases where nobody asked it to do so. Swift v. Tyson held in 1842 that federal courts could apply a “general law” independent of the state law that would apply had the suit been brought in a state court sitting nearby.30 The rule lasted for ninety-six years until Erie Railroad Co. v. Tompkins did away with it in 1938.31 Plessy v. Ferguson,32 and the rule of separate-but-equal in racial matters, lasted fifty-eight years before it was dispatched in Brown v. Board of Education.33 In a period of sixteen years the Court took three different positions with respect to the constitutionality of federal power to impose wage and price regulations on states and localities as employers.34 Indeed, Justice Blackmun explained recently in the last of these decisions that prior cases, even of fairly recent vintage, should be reconsidered if they “disserve [] principles of democratic self-governance.”35 Every year the Court overrules a number of its own precedents. As the examples given show, both recent and ancient precedents are vulnerable.
The practice of overruling precedent is particularly common in constitutional law, the rationale being that it is extremely difficult for an incorrect constitutional ruling to be corrected through the amendment process. Almost all Justices have agreed with Felix Frankfurter’s observation that “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”36 But that, of course, is only a partial truth. It is clear, in the first place, that Frankfurter was talking about the Supreme Court’s obligations with respect to its own prior decisions. Lower courts are not free to ignore what the Supreme Court has said about the Constitution, for that would introduce chaos into the legal system as courts of appeal refused to follow Supreme Court rulings and district courts disobeyed their appellate courts’ orders. Secondly, what “the Constitution itself” says may, as in the case of paper money, be irretrievable, not simply because of “what [the Justices] have said about it,” but because of what the nation has done or become on the strength of what the Court said.
It is arguable that the text of the Constitution counsels some ambivalence about precedent. Article VI states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof” are to be “the supreme Law of the Land.”37 That could be taken to mean that recourse is continually to be had to the text of the Constitution and statutes without regard to prior judicial decisions since the latter are not given the status of supreme law. But article III vests the “judicial Power” in the Supreme Court and lower
federal courts.38 At the time of the ratification, judicial power was known to be to some degree confined by an obligation to respect precedent. Whatever may be made of that, it has been commonly understood that a judge looking at an issue for the second time is, or should be, less free than one who looks at it for the first time. In constitutional law, as in all law, there is great virtue in stability. Governments need to know their powers, and citizens need to know their rights; expectations about either should not lightly be upset.
The law currently has no very firm theory of when precedent should be followed and when it may be ignored or overruled. It is an important subject nonetheless, and it is particularly so to a judge who abides by the original understanding, because, as Monaghan said, so much of our constitutional order today does not conform to the original design of the Constitution. If we do not possess anything worthy of being called a theory of precedent, it is possible at least to suggest some of the factors that should be considered when facing a question of following or overruling a prior decision.
No question arises, of course, unless the judge concludes that the prior constitutional decision, which is urged as controlling his present decision, was wrong. In making that determination, particular respect is due to precedents set by courts within a few decades of a provision’s ratification since the judges of that time presumably had a superior knowledge of the original meaning of the Constitution. Similarly, precedents that reflect a good-faith attempt to discern the original understanding deserve far more respect than those that do not. Here, there are not only the claims of stability and continuity in the law, but respect for the knowledge and intelligence of those who have gone before. Today’s judge should reflect that if the prior court has been wrong, he too may fall into error.
But if the judge concludes that a prior decision was wrong, he faces additional considerations. The previous decision on the subject may be clearly incorrect but nevertheless have become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court, but it is not the less valid for that. Judging is not mechanical. Many rules are framed according to predictions of their likely effects, and it is entirely proper for a decision to overrule or not to overrule to be affected by a prediction of the effects likely to flow from that. Thus, it is too late to overrule not only the decision legalizing paper money but also those decisions validating certain New Deal and Great Society programs pursuant to the congressional powers over commerce, taxation, and spending. To overturn these would be to overturn most of modern government and plunge us into chaos. No judge would dream of doing it. It was never too late to overrule the line of cases represented by Lochner, because they were unjustifiable restrictions on governmental power, and allowing additional regulation of economic matters did not produce any great disruption of institutional arrangements. Similarly, it will probably never be too late to overrule the right of privacy cases, including Roe v. Wade, because they remain unaccepted and unacceptable to large segments of the body politic, and judicial regulation could at once be replaced by restored legislative regulation of the subject.
To say that a decision is so thoroughly embedded in our national life that it should not be overruled, even though clearly wrong, is not necessarily to say that its principle should be followed in the future. Thus, the expansion of Congress’s commerce, taxing, and spending powers has reached a point where it is not possible to state that, as a matter of articulated doctrine, there are any limits left. That does not mean, however, that the Court must necessarily repeat its mistake as congressional legislation attempts to reach new subject areas. Cases now on the books would seem to mean that Congress could, for example, displace state law on such subjects as marriage and divorce, thus ending such federalism as remains. But the Court could refuse to extend the commerce power so far without overruling its prior decisions, thus leaving existing legislation in place but not giving generative power to the faulty principle by which that legislation was originally upheld. It will be said that this is a lawless approach, but that is not at all clear. The past decisions are beyond reach, but there remains a constitutional principle of federalism that should be regarded as law more profound than the implications of the past decisions. They cannot be overruled, but they can be confined to the subject areas they concern. Similarly, there may be no real point in overturning the decision in Griswold v. Connecticut. It was unimportant in its immediate consequences since no jurisdiction wants to enforce a law against the use of contraceptives by married couples. But that does not mean that Roe v. Wade should not be overruled or that the spurious right of privacy that Griswold created should ever be used to invalidate a statute again. Griswold has had generative power, spawning a series of wrong decisions, and will certainly bring a series of new and unjustifiable claims before the federal courts. But should it become apparent that the Court will not apply it again, the stream of claims will dwindle and ultimately dry up. A case like Shelley v. Kraemer has generated no subsequent decisions and is most unlikely to. The Supreme Court has refused to follow its rationale, and there would be no point in overruling the decision. There are times when we cannot recover the transgressions of the past, when the best we can do is say to the Court, “Go and sin no more.”39
Finally, it should be said that those who adhere to a philosophy of original understanding are more likely to respect precedent than those who do not. As Justice Scalia has said, if revisionists can ignore “the most solemnly and democratically adopted text of the Constitution and its Amendments … on the basis of current values, what possible basis could there be for enforced adherence to a legal decision of the Supreme Court?”40 Indeed, it is apparent from our recent history that the Justices most inclined to rewrite the Constitution have the least patience with precedent that stands in their way. If you do not care about stability, if today’s result is all-important, there is no occasion to respect either the constitutional text or the decisions of your predecessors.
The interpretation of the Constitution according to the original understanding, then, is the only method that can preserve the Constitution, the separation of powers, and the liberties of the people. Only that approach can lead to what Felix Frankfurter called the “fulfillment of one of the greatest duties of a judge, the duty not to enlarge his authority. That the Court is not the maker of policy but is concerned solely with questions of ultimate power, is a tenet to which all Justices have subscribed. But the extent to which they have translated faith into works probably marks the deepest cleavage among the men who have sat on the Supreme Bench. … The conception of significant achievement on the Supreme Court has been too much identified with largeness of utterance, and too little governed by inquiry into the extent to which judges have fulfilled their professed role in the American constitutional system.”41
Without adherence to the original understanding, even the actual Bill of Rights could be pared or eliminated. It is asserted nonetheless, and sometimes on high authority, that the judicial philosophy of original understanding is fatally defective in any number of respects. If that were so, if the Constitution cannot be law that binds judges, there would remain only one democratically legitimate solution: judicial supremacy, the power of courts to invalidate statutes and executive actions in the name of the Constitution, would have to be abandoned. For the choice would then be either rule by judges according to their own desires or rule by the people according to theirs. Under our form of government, under the entire history of the American people, the choice between an authoritarian judicial oligarchy and a representative democracy can have only one outcome. But this is a false statement of alternatives, for judicial interpretation of the Constitution according to its original understanding is entirely possible. When that course is followed, judges are not a dictatorial oligarchy but the guardians of our liberties. I turn next to the objections that have
been raised to this conclusion.
8
Objections to Original Understanding
A great many objections have been raised to the idea that the judge should be guided in applying a provision of the Constitution by the principles the ratifiers of that provision understood themselves to be enacting. The original understanding, as already noted, is the method by which we interpret and apply other legal texts, and, as Dean John Hart Ely has noted, it “does seem to retain the substantial virtue of fitting better our ordinary notion of how law works: if your job is to enforce the Constitution then the Constitution is what you should be enforcing, not whatever may happen to strike you as a good idea at the time.”1 Ely himself finds that view inadequate for reasons to which we shall return at the end of this chapter. But it is the fact that applying what was originally understood does fit our idea of how law works that makes it necessary for revisionists to clear the idea out of the way before getting on with their own theories of why the Constitution does embody what strikes them as a good idea at the time. In this chapter I shall deal with the more common objections to the original understanding to show that none of them bear examination.
The Claim that Original Understanding Is Unknowable
A very frequent objection to the idea of original understanding is that it is impossible of application since we at the end of the twentieth century cannot know what was intended by those who adopted the Constitution at the end of the eighteenth century. In its most severe form, this objection makes demands that no legal document can possibly satisfy. Thus, Justice William J. Brennan, Jr., in a speech at Georgetown University in 1985, attacked the view that legitimate judicial review consisted in applying what some call “the intentions of the Framers.”2
The Tempting of America Page 21
