Traditionalist Originalism

Here is the latest over at the Liberty Fund in my small efforts to play with what a fusionist interpretive approach to constitutional interpretation–integrating originalism and what I have called traditionalism–might look like and require. The occasion is a reply to some fine essays by Professors Randy Barnett, Jesse Merriam, and Ilan Wurman, who were responding to this piece on stare decisis.

I find these more extended exchanges useful. You get a chance to really talk to people a bit more, so to speak. Here’s a little bit:

Originalists moved by Professor Barnett’s imperative [to align doctrine with original meaning] would be well-advised to attend to the difference between, on the one hand, an ancient and enduring cluster of precedents reflecting practices extending back to the founding (and even before it) and, on the other, a comparatively recent, one-off, “unmoored” (as Justice Thomas put it) decision that runs counter to such enduring practices. This distinction is important for at least two reasons, one theoretical and the other practical.

First, at least in cases where meaning is uncertain, old and enduring precedential lines carry greater epistemic weight about those meanings than do recent and isolated doctrinal innovations. Precedents proximate in time to the founding and repeatedly entrenched thereafter for centuries in subsequent doctrine and practice are more powerful evidence of permissible, even if not mandated, textual meanings, than precedents that do not share these qualities. True, they are not conclusive evidence. An ancient and enduring line of doctrine may have gotten it wrong, and wrong repeatedly, from the start. But for the many constitutional provisions where meaning is uncertain, and for situations in which there may be several interpretations that are not “demonstrably erroneous,” originalists concerned about epistemic warrant ought to grant such precedential lines a presumption of veracity.

Consider the bizarre and hubristic alternative: a world where early judicial interpretations, and the lasting and concentrated lines of precedent generated by them, are given no respect at all, or are even presumed to be wrong, and it is only the latest-arriving “knowledgeable scholars,” so much more distant in time and legal culture, who can see clearly and are owed epistemic deference. Judges evaluating practices close in time to the founding have access and insight that scholars who research original meaning today should acknowledge and respect. They are much more likely than we are to share in the political and cultural ethos of their own time. And where an early understanding has endured and been repeatedly reaffirmed for generations, thereby increasing its law-like properties, the respect we owe it likewise should increase.

Second, the justices whom originalists admire most do tend to invest ancient and enduring precedential lines with qualitatively different stare decisis force than recent, novel, and unmoored precedents. As I indicated in my first essay, this is something that judges inclined toward originalism have appreciated better than their scholar counterparts. I was therefore puzzled by Professor Barnett’s claim that “some justices” today may be eager to overrule D.C. v. Heller and Citizens United v. FEC, just as other justices of the Warren and Burger Court eras swept away ancient and longstanding precedents that obstructed their progressive political aims. That may be true, but I would not have thought that originalists would take these justices to be their models, let alone to vindicate Professor Barnett’s argument that Supreme Court justices “must be free” to vote as they like whenever they like, stare decisis notwithstanding.

Against Professor Barnett’s claim that Supreme Court justices “never have” treated stare decisis as especially powerful in the case of old and enduring precedents, I point back to my initial essay, where I described the considerable “buy-in” that already exists from the justices whom originalists admire and would like to win over—including Justice Thomas, Justice Gorsuch, and Justice Alito in their respective opinions in Gamble, Mesa, and Ramos. If the Chief Justice can be shown the error of his “insidious” conception of stare decisis in June Medical, as Professor Wurman puts it, then perhaps he, too, might be persuaded to buy in.

In highlighting age, deep roots in common practice, and enduring continuity—that is, in emphasizing the jurisprudential traditionalism of constitutional law—these justices are telling originalist scholars something important about the virtue of stability in constitutional law, and about its nature. As Judge Amy Coney Barrett has indicated, Justice Scalia likewise long defended the “stare decisis” of American political and cultural traditions against the doctrinal innovations of judges (and scholars) entirely disconnected from, and sometimes even disdainful of, those traditions. “In an important sense,” Judge Barrett argues, “originalism can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.” Justice Scalia is no longer on the Court, of course. But others may come who have been influenced by his legacy. Originalists have reasons to listen to what these judges are telling them.

Professor Barnett is right, then, that integrating originalism and stare decisis will require accepting the “imperative” of gradual doctrinal alignment in accordance with original meaning. That will be stare decisis’ concession. But integration will require a concession from originalism, too—and something more than what Professor Barnett is offering at the moment. Originalists will need to acknowledge the traditionalism of constitutional law and that precedential age, endurance, and connection to common practice matter in constitutional law. They matter both for epistemic, interpretive reasons that ought to be of interest to originalists and for the stability that ought to be recognized by originalists and nonoriginalists alike as a legal virtue.

Around the Web

Around the Web

Here are some important law-and-religion news stories from around the web:

Upcoming Webinar on Law, Religion, and Covid

A programming note: next Friday, October 2, at 11:00 am, the Center will co-host a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” The webinar will feature commentary from law professors, law students, and lawyers on the implications of the coronavirus pandemic, as well as economic and racial justice concerns raised over the past six months. Co-sponsors include the International Center for Law and Religion Studies at Brigham Young University Law School; the Center for the Study of Law and Religion at Emory University Law School; the Program on Church, State & Society at Notre Dame Law School; and the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University’s Charles Widger School of Law. The roster of speakers and further details are available here. Hope you can join us for what will be an excellent program!

Merriam Responds on Originalism and Stare Decisis

The final response to my essay on integrating originalism and stare decisis, by Professor Jesse Merriam (Patrick Henry College), is up. I will have a reply to all three of my respondents in a few days. A bit from the end of Professor Merriam’s piece:

Any effort to restore the American legal tradition must engage the fact that our constitutional order has been revolutionized through a vast array of “individual liberty” decisions. As Bruce Frohnen describes this shift, the Supreme Court’s Fourteenth Amendment jurisprudence has transformed American constitutional law from a mediating order (i.e., a constitutional order that “mediates among more primary social groups and institutions”) into a commanding order (i.e., a constitutional order that “shape[s] the conduct of individuals, groups, and political actors to produce a society that has a specific character”).

In accord with this commanding order, the federal judiciary has emancipated the individual from the strictures of the past, including the traditional institutions of family, church, and community. This has had the effect of also emancipating us from one another, thus denying the “social bond individualism” that Richard Weaver found to be a critical part of a stable liberal order. And our emancipation from the past has severed us from the world we are creating. Traditions, as Burke described them, create “a partnership” not only among the living, but also among “those who are dead, and those who are to be born.” For this reason, Burke concluded that a people “who never look backward to their ancestors . . . will not look forward to posterity.”

How ironic, then, that Chief Justice Roberts would invoke Burke in his June Medical opinion, a case that, in striking down restrictions on abortion clinics, reaffirmed the Roe line of cases creating a constitutional right to abortion—in other words, the right to be emancipated from one’s posterity. June Medical is wrong, not because it got stare decisis wrong (as DeGirolami alleges), but because it got the meaning of tradition—and the meaning of personhood—wrong.

None of this is to say that DeGirolami’s effort is not worthwhile. But it does seem out of tenor with our current predicament. The task for a traditionalist is not to find a place for originalism and stare decisis in the American legal landscape, but rather to find a place for tradition in a political and legal culture that exalts emancipation as the highest good.

Faced with this task, DeGirolami may find that preserving the American tradition does not simply mean picking up a legal thread. It may, instead, mean picking up the needle and starting a new one.

Around the Web

Around the Web

Here are some important law-and-religion news stories from around the web:

Barnett Responds on Originalism and Stare Decisis

Professor Randy Barnett (Georgetown), a leading scholar and exponent of originalism, has a response to my essay on integrating originalism and stare decisis. Here is a bit from his essay:

Let me now turn to the issue of whether the Supreme Court is bound to follow its own previous erroneous decisions. This is called “horizontal stare decisis.” To begin with, it’s important to observe that the Supreme Court does not treat its previous decisions as binding in the same sense that lower courts do. And it never has.

True, the justices do periodically invoke the doctrine of stare decisis and attempt to explain when prior decisions should be followed or not, as Justices Kennedy, Souter, and O’Connor did in Planned Parenthood v Casey. But quite unlike the inferior courts, the Supreme Court has always asserted the power to overrule its own prior decisions—even if a precedent is longstanding and even if it has been reaffirmed on many occasions. For example, in Brown v. Board of Education, the Supreme Court refused to adhere to the “separate but equal” rule it had established almost 50 years earlier in Plessy v. Ferguson.

For some justices, Roe v. Wade is currently and will always be in play. For other justices, Citizens United and D.C. v. Heller and a host of Rehnquist Court decisions are susceptible to reversal as soon as they have the votes. And, lest we forget, modern originalism arose in response to the New Deal, Warren, and Burger Court’s wholesale rejection of many precedents that stood in the way of their progressive political agenda.

This means that, unlike inferior court judges, an originalist Supreme Court justice—like every justice—has the option of voting inconsistently with previous Supreme Court decisions. Indeed, because the Supreme Court’s rulings are “final” within the judiciary, future justices must be free to vote otherwise so the Court’s errors can be corrected.

In this regard, Professor DeGirolami’s proposal that justices respect precedents that have become “grounded in deep-rooted traditions of law, politics, and culture” may or may not be a good idea. But it is not itself grounded in our deeply-rooted traditions of law, politics, and culture. Like originalism, his is also a reform proposal that would require “buy-in” by justices to become our practice. No doubt there is a normative case to be made for such a proposal. But so too is there a normative case to be made for judges to adhere to the original meaning of the text whenever a faithful application of that text leads to a particular result.

And that’s what’s missing from Professor DeGirolami’s proposal: any imperative to bring the precedents of the Supreme Court gradually into alignment with the original meaning of our written Constitution. Without that imperative, stare decisis becomes the “exception” that swallows the Constitution. It can also be invoked selectively to avoid originalist results a justice does not like—or ones that would be unpopular. Such opportunism by “originalist” justices undermines originalism.

Judicial Supremacy: Not So Bad

At the Law & Liberty site today, I have a review of Louis Fisher’s new book on judicial supremacy, Reconsidering Judicial Finality. Contra Fisher, I argue in favor of judicial supremacy, properly understood as a rebuttable presumption that Court rulings are binding on other political actors and the people as a whole. Here’s an excerpt:

But the better view, and the one most scholars would take, is that Court judgments are presumptively binding in this broader sense. In the great sweep of our constitutional history, resistance to Court rulings has been comparatively rare. The strength of this presumption is impossible to state in categorical terms. Richard Fallon offers a good way to think about it. Judicial supremacy means that “judicial rulings must be obeyed as long as they are intra rather than ultra vires”—that is, as long as they are plausibly “within a court’s authority to render”—and “not unreasonable as judged from the perspective of the President and a majority of the American people.” If our constitutional democracy is tolerably functional, occasions for resisting Court rulings will arise relatively infrequently.

Note that, on a proper view of judicial supremacy, the Court remains free to change its mind and rule differently in subsequent cases. And political actors, as well as the public at large, remain free to try to persuade the Court to do so. After all, unless some litigant brings a challenge, the Court will never have an opportunity to revisit an earlier decision. Lincoln put it well in responding to the Court’s disastrous ruling in the Dred Scott case (1857), in which the Court held that the Constitution did not allow African-Americans to be citizens or Congress to outlaw slavery in federal territories. The Court’s decisions on constitutional questions, Lincoln conceded, “should control, not only the particular cases decided, but the general policy of the country.” Nevertheless, “[w]e know the Court . . . has often overruled its own decisions, and we shall do what we can to have it overrule this.” . . .

Fisher is unfortunately dismissive of arguments in favor of judicial supremacy. “No matter what evidence is presented,” he writes, “some scholars and courts will continue to rely on and promote the doctrine of judicial finality.” But it is not simply obstinance. Good arguments exist for judicial supremacy, including the desirability of settling legal questions and promoting reliance on the part of citizens, who need to know what the law requires at any particular time. Besides, the logic of judicial review itself suggests some sort of judicial supremacy. The Constitution is not simply what the Court says it is; but if the Court’s decisions are not broadly authoritative, constitutional impasses will occur much more frequently—not the end of the world, but not the best situation, either.

You can read the whole review here.

Announcing the CLR Reading Society

A little light for the CLR Reading Society

St. John’s Center for Law and Religion is pleased to announce the CLR Reading Society, an opportunity open to all St. John’s Law students. This year’s first book is Antigone, by the playwright Sophocles. We will gather on selected evenings to discuss the book together. This semester’s gatherings will be online.

St. John’s Law students interested in the CLR Reading Society should contact Professor DeGirolami, marc.degirolami@stjohns.edu, or Professor Movsesian, movsesim@stjohns.edu. Books are provided for free to students and all are welcome. Our first meeting will be on October 15 to discuss Antigone, so students who would like a book should write to us by September 30.

A New Book on Belonging

Sociologists of religion often distinguish “believing” from “belonging.” There is “belonging without believing”–being formally part of a religious community without having religious convictions–and “believing without belonging”–subscribing to religious claims while remaining formally outside a religious community. For what it’s worth, we Americans tend more towards the latter, especially now, with the rise of the Nones.

Cambridge University Press has released an interesting-looking book by Joseph David (Sapir Academic College, Israel), Kinship, Law and Politics: An Anatomy of Belonging, which no doubt touches on these issues. Here’s the description from the Cambridge site:

Why are we so concerned with belonging? In what ways does our belonging constitute our identity? Is belonging a universal concept or a culturally dependent value? How does belonging situate and motivate us? Joseph E. David grapples with these questions through a genealogical analysis of ideas and concepts of belonging. His book transports readers to crucial historical moments in which perceptions of belonging have been formed, transformed, or dismantled. The cases presented here focus on the pivotal role played by belonging in kinship, law, and political order, stretching across cultural and religious contexts from eleventh-century Mediterranean religious legal debates to twentieth-century statist liberalism in Western societies. With his thorough inquiry into diverse discourses of belonging, David pushes past the politics of belonging and forces us to acknowledge just how wide-ranging and fluid notions of belonging can be.

Around the Web

Around the Web

Here are some important law-and-religion news stories from around the web:

%d bloggers like this: