A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School under the direction of Mike Rappaport. It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously. One of those critics, Richard Primus, has blogged about the conference in a friendly manner. Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists believe that originalism has never been tried before. I have never heard such a bald assertion from my colleagues.
And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.
A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.
Recently, a three judge panel on the D.C. Circuit held in PHH Corp. v. Consumer Financial Protection Bureau, that the for cause removal provision for the director of the Consumer Financial Protection Bureau was unconstitutional. Rather than striking down the entire statute, the court struck the for cause removal provision, leaving the director subject to removal at the pleasure of the President.
The Bureau is an example of the newest philosophy in administrative governance, which the Democrats have pursued in Sarbanes Oxley, Obamacare, and the Dodd-Frank banking act. The idea is to maximize the independence of administrative agencies and to enhance their power. In terms of maximizing the independence of the Bureau, the Bureau does not answer to the President (that is what the for cause removal provision means) and it is funded through the Federal Reserve, so that the Congress cannot use its appropriations power to control the agency. The power of the agency is enhanced, because it is controlled by a single director rather than a bipartisan commission as virtually all independent agencies are. Needless to say, this new philosophy of governance is extremely problematic.
My co-blogger, Mike Rappaport, has opened up a discussion about the flaws of Justice Scalia’s jurisprudence. I think this is an important subject. Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.
In constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the original meaning of the Constitution was one in which he argued for following precedent: “I am an originalist, not a nut.” Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule. It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.
And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule. As a result, he is open to the criticism that he picked and choose among precedents he liked (or at least could live with) and those he hated.
Thus, for instance, he would never acquiesce in the fundamental right cases, like Roe, but he was willing to follow and perhaps even extend cases, like Wickard v. Filburn.
In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who believes “the meaning of the Constitution evolves over time.” This claim is contrary to the received wisdom about Scalia. But it is consistent with a long-term project of the left—to deny that originalism is distinct either conceptually or in practice from living constitutionalism and thus to remove a barrier to the progressive transformation of the United States.
But Sunstein’s arguments are weak. First, he contends that some of Scalia’s opinions do not rely on the original meaning of provisions. But he has to acknowledge Scalia’s own response to these complaints: that as a judge he also has some duty to follow precedent. And applying precedent under neutral rules is emphatically not inconsistent with originalism. Analytically, precedent generally concerns the adjudication of the Constitution, not its meaning. Moreover, as Michael Rappaport and I have argued, the original Constitution contemplates the application of precedent.
Sunstein then downplays the full-throated originalism of District of Columbia v. Heller’s holding in favor of an individual right to hold arms at home. First, he quibbles that an originalist should have to show that the Second Amendment reference to “arms” was not limited to the firearms at the Founding. Scalia dismissed this argument as almost frivolous, as indeed it is even as matter of originalism.
The Supreme Court yesterday suggested a compromise solution to the contraceptive mandate for religiously oriented service organizations that object to contraception, and required the parties to comment on whether it met their needs. This order, made after oral argument, is very unusual. It likely reflects the fact that the Court was divided 4-4 on the question of whether the Obama’s administration previous accommodation violated the Religious Freedom Restoration Act.
Some initial responses suggest that the compromise might be welcomed by both sides. It should make us reconsider whether a Supreme Court with an equal number of justices is a bad development for the nation. A Court with nine justices would likely have come down on one side or another, embittering the side that lost in the culture wars. And when the culture war divide follows the partisan divide on the Supreme Court, the decision would only increase partisan distrust of the institution.
Greater efforts at compromise would be a hallmark of 4-4 court with such divides. Justices like to render decisions as matter of craft and institutional obligation and would tend to avoid deadlock, where possible.
Merrick Garland, President Obama’s nominee to the Supreme Court, has been touted as a centrist on the court of appeals. Whatever reasons there are to confirm him, that should not be one of them.
First, the centrism of a lower court judge is likely an illusion. He is bound by Supreme Court precedent and thus has limited ability to change the status quo. Thus, he tends to be centrist simply by virtue of his position. To be sure, there are some lawless circuit judges, who do not make a good faith effort to follow Supreme Court precedent, but they are relatively few. And none of these could be serious candidates for the Supreme Court, where a record of reversal and obvious disobedience would be seized on by the opposition.
Ruth Bader Ginsburg was pretty faithful in applying precedents when she, like Garland, was on the D.C. circuit. And she too was praised as centrist. But on the Supreme Court she has led the left on the Court. Some of her rulings and views are in fact outlandish, if not Orwellian.
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.
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.
(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…