When Constitution and Precedent Collide

by Christopher Wolfe of our chapter's Advisory Board

What should originalist justices do, when they are confronted with a large body of precedents in constitutional law that lack any serious grounding in the Constitution itself? This unfortunate situation requires us to elaborate an originalist theory of precedent.

Some Historical Materials

To start with, I would like to turn to past statesmen, and in particular to Alexander Hamilton, James Madison, and Abraham Lincoln, for some guidance on this issue.

Hamilton

It was established early in American history that "the judicial power" of Article III referred to the decision of "cases" and "controversies." Judges, for example, were not to issue "advisory opinions." The "judicial power" to which the framers referred in Article III was not a newly devised power, but one that had been exercised for centuries in the country from which America took root. In particular, the judicial power reflected the influence of the common law system, in which judges acknowledged the great weight of precedent. Alexander Hamilton gave testimony to this in Federalist No. 78:

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them. ...

The necessity of the authority of precedents, to limit the discretion of judges, was assumed by Hamilton to be an ordinary and essential part of the judicial power.

Should constitutional cases be somehow exempted from the ordinary attributes of the judicial power? A more plausible case for this might be made if the power of judicial review were a distinct and independent power of American judges. But the fact is that judicial review is nowhere mentioned in the Constitution, and in fact is a derivative power, something that flows from the ordinary power of judges to decide cases. This suggests that it ought to be exercised according to the usual common law forms of judicial power, including precedent, as well as according to republican principles, such as legislative deference.

It should be noted, of course, that precedent was not an absolute principle in the common law system. And, in addition to the countervailing considerations in common law, there exist special considerations related to the nature of constitutional adjudication (for example, Justice Louis Brandeis' point that in constitutional cases correction through legislative action is practically impossible, and so the Court has been more willing to overrule its earlier decisions).

Madison

Madison dealt explicitly with the question of the force of precedent in constitutional cases when he was attacked for inconsistency, on the grounds that he had led the battle against the original national bank in the early 1790s and then later, as president, had signed into law a bill establishing a new national bank.

Madison strongly denied the charges of inconsistency. To one correspondent he wrote:

the inconsistency is apparent only, not real; inasmuch as my abstract opinion of the text of the Constitution is not changed, and the assent was given in pursuance of my early and unchanged opinion, that, in the case of a Constitution as of a law, a course of authoritative expositions sufficiently deliberate, uniform, and settled, was an evidence of the public will necessarily overruling individual opinions. It cannot be less necessary that the meaning of the Constitution should be freed from uncertainty, than that the law should be so. That cases may occur which transcend all authority of precedents must be admitted, but they form exceptions which will speak for themselves and must justify themselves.

Madison, then, clearly understood precedent to have force, even in cases where his "abstract opinion" that the meaning of the Constitution had been misstated by the precedent remained unchanged. It is "necessary that the meaning of a Constitution should be freed from uncertainty" just as it is true that ordinary statutes ought not to be left uncertain in meaning. This necessity inheres in the nature of law, for an unsettled and changing law is harder to know and to apply consistently and impartially.

His reasoning gave weight to the need for "deliberate, uniform and settled" constitutional meaning, but he connected these factors to a deeper political argument derived from the nature of our republican form of government: "a course of authoritative expositions sufficiently deliberate, uniform, and settled" is "evidence of the public will necessarily overruling individual opinions." The ultimate rulers in republican government are the people, and it is their opinion that is finally authoritative. When by various signs it becomes clear that a decision has become "settled", that is a kind of tacit consent argument that the people have determined the matter. At the same time, recall--as I will discuss further below--that Madison indicated that there may be cases that "transcend all authority of precedents."

So the need for a deliberate, uniform, and settled exposition of the Constitution, combined with an argument that settled constitutional law can be viewed as having received public acquiescence, provides a reasonable ground for recognizing the force of precedent in constitutional decisions.

Lincoln

Lincoln's contribution to our topic came in the context of a discussion of the authority of Supreme Court precedents in response to the Dred Scott decision. Lincoln's position was a quite nuanced one. He distinguished between the decision of the case and the interpretation of the Constitution on which that decision was based. Republicans had no intent to disturb the decision in the particular case, he said. Lincoln went even further, conceding that the Court's "decisions on constitutional questions, when fully settled, should control not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution. . .".

But that qualification-"when fully settled"-was key. As Lincoln argued in his First Inaugural:

the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

Lincoln (and, he said, the "customary understanding of the legal profession") therefore took a middle position on the question of the authority of Supreme Court precedents: "judicial decisions are of greater or less authority as precedents according to circumstances." Lincoln listed a variety of circumstances that undermined the authority of the Dred Scott decision, though there was no indication that he intended it to be exhaustive, e.g. lack of unanimity in the decision, discordance with legal public expectation and with the steady historical practice of the different branches of government, and the lack of authority that comes from being affirmed and reaffirmed and accepted over time.

The conclusion that I would draw from these historical materials is that judges ought to begin with a presumption in favor of precedent-the burden of proof should be on the one who seeks to overturn precedent-while recognizing that precedent is not absolute.

The Transformation of Judicial Review

Another important historical datum-which I have discussed at great length in The Rise of Modern Judicial Review, and can only refer to here-is the fundamental historical shift in the nature of American judicial review, from an essentially interpretive power to an essentially legislative power. The dubious relationship of most modern constitutional law and the Constitution itself is not due simply to a series of bad decisions-it is systemic, flowing from the very conception of modern judicial review.

I think there is no doubt that our great constitutionalists-Hamilton, Madison, Marshall, Lincoln-would reject such a power. It is less clear how they would regard its implications for the principle of following precedent-though it is hard for me to imagine that it would not weaken the case for precedent in some way, without eliminating it.

Some Basic Principles

The question is, then, "what principles should guide our application of precedent?" I think the following three principles may be useful.

First, it is settled precedents that carry weight in constitutional adjudication. Lincoln's list of considerations undermining the authority of Supreme Court precedents provides us with a good starting point for deciding what is "settled." Settled decisions, then, will be especially those that are agreed to by large or unanimous Court majorities, that conform to the expectations of the educated public, that are supported by the practice of government generally, and that have been reaffirmed over time.

Second, a precedent has to be evaluated in terms of its compatibility with the fundamental principles of our form of government. Madison adds a very important qualification to his position--that some cases will transcend all authority of precedent. As his opinion on the bank indicated, he was willing to defer to what he took to be long-term popular agreement to a constitutional position, even one he considered wrong as an abstract matter. Yet there were still some limits, even to the popular authority underlying settled precedent.

The most plausible interpretation of this Madisonian position is that some constitutional principles are so "fundamental" that even precedent cannot displace them; precedent would not authorize maintaining decisions based on principles incompatible with the essential nature of our form of government. Dred Scott is a good example of this principle, since, as Lincoln argued, it struck at the heart of the principles of the Declaration, the fundamental principles of our government. The Court missed this in its discussion of the criteria for overruling precedent in Casey. The most important reason for overruling Dred Scott was that it was a really, really bad decision. The same must be said of Roe v. Wade.

On the other hand, other decisions unjustified by a proper interpretation of the Constitution are more easily harmonized with its fundamental principles, e.g., Brown v. Board of Education and Gideon v. Wainwright.

Third, a precedent will carry less weight if acceptance of that precedent requires judges to act in a way that is fundamentally incompatible with the nature of judicial power. Most fundamentally, judicial decisions that commit courts to the ongoing exercise of fundamentally legislative power should be denied the ordinary weight of precedent. On this ground, for example, it was sensible for the Court to reconsider its free exercise doctrine under Sherbert, which had required constant judicial balancing or policymaking, and to return to the more traditional doctrine reinstituted in Smith, which relieved it of the task of constant legislating in this area (for that is what balancing is). This principle would also justify uprooting that judicial blank check, the doctrine of substantive due process.

These three princples urge as to begin with a presumption in favor of truly settled precedents, but they leave us, also, with ample room to resist the precedents that have most distorted the Constitution.

A Practical Principle

There is also another, more practical argument for precedent today. There seems to be no sound reason for committing originalist judges to what might be called "Don Quixotism." It is a form of tilting at windmills to try to fight battles that are decisively and irreversibly lost. Of course, it may not always be easy to say when that has occurred. But sometimes it will be clear, and there are at least strong practical grounds for the originalist judge not to contend against well-settled precedents. For example, Brown v. Board of Education, at least as to the fundamental principle of prohibiting genuine legal segregation (that is, understanding Brown on its own terms rather than the way subsequent Courts have interpreted it, since 1969) does seem to be a literally irreversible decision. There is virtually no support for its overruling and no sound reason, as a matter of broad constitutional or public policy principles, to want it overruled. Even originalists who (rightly) regard it as a judicial modification and extension of the Fourteenth Amendment, therefore, are correct not to advocate its overruling. Likewise, the modern administrative state and the incorporation of the Bill of Rights, despite their dubious textual and historical basis, seem utterly unlikely to be uprooted.

Especially given the character of the judicial nomination process today, it would be very unfortunate if originalist nominees-committed to the position that precedent carries no weight in constitutional adjudication-felt compelled to admit, during hearings on their nominations, that, in principle, they must be open to reconsideration of precedents as fundamental and as settled as Brown or incorporation.

Conclusion

This kind of discussion is necessarily a very dissatisfying one for an originalist. Originalism is a theory that seeks to minimize unchecked (or insufficiently checked) judicial power. While traditional constitutional jurisprudence was never a "mechanical jurisprudence" that could completely eliminate the need for a certain measure of political prudence in judges, it certainly tried to confine judges to the interpretation (rather than the making) of law. The general guidelines for originalist judges discussed above recognize that there is no absolute rule on precedent: it is neither always illegitimate to uphold incorrect constitutional precedents nor always illegitimate to overturn them. They tell originalist judges to give considerable weight to precedent that is settled and less sharply opposed to the Constitution. They also say that practical necessity will require conceding great precedential weight to cases which seem so deeply rooted that opposition to them would accomplish nothing. On the other hand, they also recognize that many decisions are not fully settled and that some principles are so fundamental that contrary decisions can never be exempted from reconsideration. In the final analysis, then, originalist judges will have to make prudent determinations about what precedents to consider beyond debate and which to regard as open to challenge. If this is an uncomfortable position for originalist judges, that may simply be an inevitable feature of living in a time of nonoriginalism.