Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System

In my last post, I noted that the advocates of departmentalism do not rely on pre-constitutional practice to found their view.  Instead, they tend to argue that the Constitution adopted a new system, one in which each of the branches is equally entitled to interpret the Constitution. The problem with this argument is that it lacks support.  The Constitution both relied upon the preexisting English and state systems as well as establishing some innovations.  The question for departmentalists is to show that the Constitution actually adopted departmentalism. Here is what I regard as the basic textual problem with arguing that the new…

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Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History

In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law.  But that reading of the Constitution or the common law would require evidence that judicial precedents were seen as imposing such an obligation.

What then might that evidence be?  One possible source of evidence are statements made by various framers at the Philadelphia and Ratification Conventions that Randy Barnett has recently blogged about.  For example, he notes that James Wilson said:

If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.

One might read Wilson as stating that a judicial decision declares an unconstitutional law “null and void” and therefore the executive is obligated not to enforce it.  But Wilson need not be read that way.  As Ed Whelan notes, this statement might be understood instead as stating that the executive will as a practical matter not be able to enforce laws that the courts are unwilling to apply in adjudications.

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Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy

After a short detour responding to Mike Paulsen, I am back to elaborating on my view of the departmentalism/judicial supremacy debate.  As I noted in my last post, the basic question turns on whether the executive or Congress must follow judicial precedents.

What might obligate the executive or Congress to follow judicial precedents?  One starts, of course, with the text of the Constitution.  The judicial power extends only to “cases” and “controversies.”  Therefore, in the absence of anything else, a judicial decision cannot bind other than as to the judgment.  The judgment decides the case; the precedent is about possible future cases that have not arisen.  This is part of the core of the case for departmentalism.

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Paulsen on Departmentalism versus Judicial Supremacy

I have started a series of posts on the departmentalism – judicial supremacy debate in an effort to explain my position, which inclines towards, but does not go all the way towards judicial supremacy.  But I am going to interrupt that planned series to briefly respond to a post written by my former Yale Law School classmate and OLC colleague Mike Paulsen.  Mike sets up a “horrible hypothetical” – one that involves a horrible situation – involving an awful law that prohibits speech that the First Amendment protects, punishes its violation with torture that violates the Eighth Amendment, and unconstitutionally prohibits the President from pardoning the persons convicted.  (It also violates other clauses as well.)  The Supreme Court then upholds the constitutionality of the law as to an individual. Mike asks, among other things, whether the President is constitutionally obligated to enforce the law.

Legally, the answer would seem to be clear.  The courts, with Supreme Court review, have issued a judgment that requires the torturous punishment and prohibits pardons.  But Mike’s horrible hypothetical appears designed to make us resist this conclusion – it is just such a horrible decision and outcome!  But there are several reasons that allow us to easily avoid the pull of this hypothetical.

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Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions

Since I was away on vacation when this debate began, I am coming late to the party. But I have some distinctive views on this issue and so I thought I would write some posts about the matter.

I should start out by saying that I have something of an intermediate view of the matter – I recognize that both sides have some strong points to make.  In the end, I stand much closer to the judicial supremacy side, but for different reasons than at least some of those defending the position.

I originally encountered this issue in law school and especially at the Meese Justice Department when Attorney General Meese gave a speech defending departmentalism.  I initially was attracted to a moderate departmentalist position, but over time I began to have second thoughts.  By the time I published this paper (here and here) in 1993, I had already moved towards seriously doubting the departmentalist position.  And I have only become more skeptical over time.

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Bolling v. Sharpe and Originalism

Mike Ramsey reports on the posting of a new article by Gregory Dolin that attempts to justify the case of Bolling v. Sharpe, which held that a Fourteenth Amendment equality requirement applies to the federal government. This is a difficult argument to make, since the two provisions which are most likely to apply an equality requirement — the Privileges or Immunities Clause and the Equal Protection Clause — apply only against the states, not the federal government. There is some evidence that the Due Process Clause of the Fourteenth Amendment applies an equality requirement, but that Clause applies only to the states. There is not much evidence that the Fifth Amendment Due Process Clause, which applies to the federal government, contains such a requirement.

Dolin argues that an equality requirement derives from the Citizenship Clause of the Amendment, which provides that “All persons born or naturalized in the United States . . . are citizens of the United States.” While I have not read Dolin’s paper, this is a common argument these days, most recently defended by Ryan Williams in the Virginia Law Review.

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A Culture of Authenticity versus a Jurisprudence of Principle


Our literary, journalistic, and thespian culture is, to put it mildly, not hospitable to conservatism in general or the legal formalism with which conservatives have long been associated. The obvious, but shallower reason, for this clash, is that our cultural elites of every kind are overwhelmingly left-liberal. The deeper reason is that much of our culture is so driven by questions of personal identity and authenticity that it has trouble even comprehending the impersonality of the principles that are at the heart of republican constitutionalism.

The Originalist, a play about Antonin Scalia, at the Arena Stage illustrates both of these problems. The conceit of the play is that Scalia has hired a liberal law clerk, Cat, and they argue about different cases. But the author does not spend nearly enough time explicating originalism or for that matter any other jurisprudence to make the play a battle of ideals. As I say in my review for City Journal, the playwright John Strand is no Tom Stoppard and “has written an intellectual ghost story, in which shadows of ideas fret their minutes on the stage.”

It almost goes without saying that play trots out the usual stereotypes of conservatives.

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Amending the Seventh Amendment

I have been exploring the original meaning of the Seventh Amendment right to a civil jury trial.  Here, I want to step back from that discussion and instead address the desirability of the Seventh Amendment.

In my view, it is not clear that a strong civil jury trial right is desirable.  My reasons are similar to those that have been voiced by critics over the years.  The civil jury is expensive in terms of the time taken from jurors and to the litigating parties.  The civil jury is often not sufficiently expert to adjudicate complicated facts.  And the civil jury often does not apply the actual law but instead their own views of justice.  While the civil jury is a check on judges, I am not sure it is worth it.

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Originalists Need a Distinctive Theory of Precedent

In Comptroller v. Wynne, the Supreme Court this week invalidated a Maryland tax on the basis of the dormant commerce clause, despite claims by Justice Antonin Scalia and Justice Clarence Thomas in dissent that the dormant commerce clause is not grounded in the original meaning of the Constitution. Michael Greve celebrated the majority’s choice to follow long established dormant commerce clause precedent and implicitly suggested that Wynne provides evidence that originalism is an implausible and even futile interpretive theory.

Michael is half-right. Originalism is certainly an inadequate theory if it cannot find a principled approach to precedent, like that on which the Wynn majority relied. Certainly, it is not politically possible for the Court to discard settled precedent when to do so would have enormous costs for society or when the precedents have become as accepted as constitutional provisions themselves. But, as Mike Rappaport and I have argued, the Constitution contemplates that justices will follow precedent. Moreover, sensible precedent rules are available that preserve the bite of originalism and still permit the Court to affirm a substantial number of well-established precedents.

Thus, my criticism of the opinions in Wynne is quite different from Michael’s.

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Reasonable Regulation of the Right to a Jury Trial

I have been blogging about the original meaning of the Seventh Amendment.  Here I want to discuss another issue concerning its meaning: how much the Amendment allows the legislature to change the rules governing jury trials? One concern about the Seventh Amendment is that it might be thought to freeze in place the precise common law at the time.  If the legal system changes in other ways, then those frozen rules might not have a coherent relation with the rest of the system. I am not sure that I find this complaint that serious.  Assuming that the common law rules were frozen…

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