University of Minnesota Law School Scholarship Repository Constitutional Commentary 2005 Originalism, Stare Decisis and the Promotion of Judicial Restraint Thomas W. Merrill Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Merrill, Thomas W., "Originalism, Stare Decisis and the Promotion of Judicial Restraint" (2005). Constitutional Commentary. 1092. https://scholarship.law.umn.edu/concomm/1092 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. ORIGINALISM, STARE DECISIS AND THE PROMOTION OF JUDICIAL RESTRAINT Thomas W. Merrill* I. INTRODUCfiON If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic debate about originalism versus stare decisis, as if they were rival modes of interpretation that could operate to the exclusion of the other. But the question of practical importance is one of degree and emphasis: in cases where these two sources of authority arguably point in different directions, which one should have a greater claim to our alle­ giance? Originalism-interpreting the text in accordance with the understanding of the Framers-is arguably the more fundamen­ tal principle. Insofar as our legal system rests on legal positivism or the command theory of law-which it largely does, at least with respect to enacted law-then the Constitution must be re­ garded as the supreme command of the ultimate lawgiver, the People. When asking what command the People have given, it makes sense to ask what the People understood the provisions of the Constitution to mean at the time they were adopted. Thus, when questions of first impression arise, or disputes erupt about whether particular precedents should be overruled, nearly all Justices seem to regard evidence of original understanding as be­ ing relevant to resolving the issue. 1 * Charles Keller Beekman Professor, Columbia Law School. I. See Michael C. Dorf, Integrating Normative and Descriptive Constitutional The­ ory: The Case of Original Meaning, 85 GEO. L.J. 1765,1766 (1997) ("Although there are very few strict originalists, virtually all practitioners of and commentators on constitu­ tional law accept that original meaning has some relevance to constitutional interpreta­ tion.''). 271 272 CONSTITUTIONAL COMMENTARY (Vol. 22:271 Yet if originalism has a strong claim to superiority in theory, stare decisis-resolving cases in accordance with the previous judgments of courts that have considered the question­ undoubtedly dominates in terms of practice. By some counts, 80 percent of the justificatory arguments in Supreme Court consti­ tutional law opinions are grounded in precedent,2 and a very large proportion of cases are decided without any argument based on the text of the Constitution or any reference to histori­ cal evidence bearing on original understanding. I would add that no Supreme Court Justice since the days of John Marshall has been able to write constitutional law opinions without giving substantial weight to precedent-and this includes all of the cur­ rent Justices, no matter how committed they may be in the ab­ stract to originalism. 3 Thus, both originalism and stare decisis are important to our constitutional system. The relevant question is which way we should tilt in cases of doubt. Simplifying a bit, the question of tilt can be reduced to how strong a version of stare decisis the Jus­ tices should apply in constitutional cases. Should the Justices embrace a weak theory of precedent, regarding prior judgments as presumptively correct but subject to overruling based on a demonstration of error? Or should the Justices adopt a strong theory of precedent, regarding prior judgments as legally binding and subject to overruling only on a showing of some special justi­ fication beyond mere error-such as a demonstration that the precedent has become unworkable or that it conflicts with other precedent?4 2. See Glenn A. Phelps & John B. Gates, The Myth of Jurisprudence: Interpretive Theory in the Constitutional Opinions of Justices Rehnquist and Brennan, 31 SANTA CLARA L. REV. 567 (1991). Based on a paragraph-by-paragraph analysis of all constitu­ tional law opinions of Justices Rehnquist and Brennan over a ten year period, the au­ thors report that both Justices relied on arguments from precedent more than 80 percent of the time in majority opinions (somewhat less in nonmajority opinions). I d. at 594, Ta­ ble 3. Textual, historical, and structural arguments accounted for less than 10 percent of the argument in Rehnquist majority opinions; just over 6 percent in Brennan majority opinions. !d. Since Rehnquist and Brennan were outliers on the Court during this period, both in terms of their substantive constitutional views and their professed interpretive theories, presumably the opinions of more centrist, pragmatically-oriented Justices rely on precedent to at least an equal degree. 3. See Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Con­ stitutional Methodology, 76 N.Y.U. L. REv. 570,582-83 (2001). 4. Philosophically-inclined legal scholars tend to draw a sharp distinction between weak and strong versions of precedent, the key point of differentiation being whether the decision maker adheres to precedent notwithstanding a conviction that it is otherwise in error. See, e.g., Frederick Schauer, Precedent, 39 STAN. L. REv. 571, 592-93 (1987). Al­ though I follow this convention here, I am not sure that this sharp distinction accurately describes judicial practice. Instead, judicial practice seems to range over a spectrum from 2005] STARE DECISIS AND JUDICIAL RESTRAINT 273 In this essay, I argue that adopting a strong theory of prece­ dent in constitutional law would have at least one consequence that I regard as desirable: it would promote judicial restraint. This is not, to be sure, the only relevant value by which to evalu­ ate the choice.5 There are obviously other factors to consider, such as the alleged need to encourage "flexibility" in the inter­ pretation of the Constitution given the difficulty of amending it.6 But judicial restraint is the only value I will focus on here, leav­ ing the more complete (and complicated) weighing or pros and cons for another day. In arguing for a strong theory of precedent on grounds of judicial restraint, I recognize that I am staking out an idiosyn­ cratic position. Judicial restraint is generally thought to be a con­ servative value, yet most conservative constitutional law scholars today seem to favor a weak theory of precedent. Gary Lawson and Michael Paulsen, for example, have argued that precedent should always give way to a showin~ of inconsistency with the original meaning of the Constitution. Randy Barnett and Steve Calabresi, although adopting more nuanced positions, are sym­ pathetic with this view. In contrast, defenders of a precedent­ based approach, such as David Strauss, are more likely to be lib­ erals.9 To some extent, I suspect these positions have been giving no weight to precedent to giving it conclusive authority, depending on context and the proclivities of the individual judge. For purposes of the present essay, however, noth­ ing turns on whether precedent-following behavior is better characterized by a dichot­ omy or by a spectrum. My claim is simply that the further one pushes the Justices of the Supreme Court toward the "binding" pole with regard to constitutional precedent, the more restrained the Court will become. 5. In a previous essay, I argued that precedent-following is superior to originalism when assessed against a range of values embraced by conservatives. See Thomas W. Merrill, Bork v. Burke, 19 HARV. J.L. & PuB. PoL'Y 509 (1996). Although there is over­ lap in the arguments, some of the values considered there-such as skepticism about us­ ing human reason to order society-are not considered here. 6. The argument that constitutional law requires a weak theory of precedent in order to permit constitutional change can be traced to Justice Brandeis's dissenting opin­ ion in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407-11 (1932). Brandeis, of course, wanted to encourage the Court to overrule decisions giving constitutional protec­ tion to contract and property rights, in order to facilitate more aggressive government intervention in the economy. 7. Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23 (1994); Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Prece­ dent, 22 CONST. COMMENT. 289 (2005). 8. See Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radi­ cal as it Sounds, 22 CONST. COMMENT. 257 (2005); Steven G. Calabresi, Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania v. Casey, 22 CONST. COMMENT. 311 (2005). 9. See David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996); see also Robert C. Post, The Supreme Court, 2002 Term: Foreword: Fashioning the Legal Constitution: Culture, Courts, and the Law, 117 HARV. L. REV. 4, 274 CONSTITUTIONAL COMMENTARY [Vol. 22:271 shaped by controversies over particular precedents, most notably Roe v. Wade, 10 and by the direction a decision overruling these controversial precedents would likely take, given the current composition of the Supreme Court. My claim is that, abstracting away from these controversies and contingencies about the po­ litical values of the current Court, someone who believes in judi­ cial restraint should favor a strong theory of precedent, at least in constitutional law. My remarks are divided into three parts.