On Originalism and Stare Decisis

I have this essay at the Law and Liberty blog on what I consider to be a problem for originalism–its capacity to integrate stare decisis. Along the way I discuss the virtue of legal endurance and pieces of my traditionalist approach to understanding the Constitution. The piece will receive responses from Professors Randy Barnett, Jesse Merriam, and Ilan Wurman. A bit from the end:

“Again: why is stare decisis valuable in constitutional judging, and when is it especially so? These are the questions that originalists must ask. Some scholars have begun to do so. Professor Randy Kozel, for example, argues that stare decisis’s normative foundations in constitutional judging are rooted in the legal values of stability and “impersonality,” as contradistinguished from the changeability and passion of politics. As he puts it: “Calendar pages turn and political winds shift, but the law is still the law.” Impersonality is especially necessary given the welter of interpretive and methodological pluralism in constitutional law. So long as that pluralism exists (and that is likely to be a long time), Kozel contends that stare decisis will be normatively desirable as a constraint on judges.

Kozel is asking the right questions, and his normative account of stare decisis goes some distance to explaining its importance in constitutional law. An even thicker account would recognize not merely the fact of the problem of pluralism mitigated by the constraints of stare decisis, but that the central virtue of stare decisis is in promoting the law’s endurance. Such an account would internalize Kozel’s distinction between law and politics. It would pick up on the clues dropped by the justices in cases like GambleMesa, and Ramos that stare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.

Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.”

Movsesian Cited by Justice Gorsuch in today’s Supreme Court Opinion on Free Speech and Severability

A point of personal privilege and congratulations to Mark, whose article, Severability in Statutes and Contracts, 30 Ga. L. Rev. 31 (1994), was cited by Justice Gorsuch in his opinion concurring in the judgment in part and dissenting in part in today’s Supreme Court case, Barr v. American Association of Political Consultants! The case is about the constitutionality of Congress’s regulation of “robocalls” and whether the offending part of the statute could be severed.

Tocqueville on the American and French Revolutions

The American and French Revolutions are often thought of as entirely distinct types. But was there a connection? Here’s a little cold water thrown on the claim of distinctiveness by Tocqueville, from The Old Regime and the Revolution (201, Furet & Melonio, eds):

Our revolution has often been attributed to that of America: in fact, the American Revolution had a lot of influence on the French Revolution, but less because of what was then done in the United States than because of what was being thought at the same time in France. While in the rest of Europe the American Revolution was still nothing but a new and unusual fact, among us it only made more evident and more striking what we thought we already knew. It astonished Europe; here, it completed our conversion. The Americans seemed merely to apply what our writers had thought of: they gave substantial reality to what we were dreaming about….

The writers not only furnished their ideas to the people who made the Revolution; they also gave them their own temperament and disposition. Under this long training, in the absence of any other directors, in the midst of the profound practical ignorance in which they lived, the whole nation ended up adopting the instincts, the attitudes, the tastes, and even the eccentricities of those who write; with the result that when the nation finally had to act, it brought all the habits of literature into politics.

When we study the history of our Revolution, we see that it was carried out in precisely the same spirit in which so many abstract books on government are written. The same attraction for general theories, for complete systems of legislation and exact symmetry in laws; the same contempt for existing facts; the same confidence in theory; the same taste for the original, the ingenious, and the new in institutions; the same desire to remake the whole constitution all at once, following the rules of logic and according to a single plan, rather than trying to fix its various parts. A frightening sight! For what is merit in a writer is sometimes vice in a statesman, and the same things which have often made lovely books can lead to great revolutions.

Happy Independence Day…

Hall Reviews “The Cambridge Companion to the First Amendment and Religious Liberty”

Professor Mark David Hall has this review of The Cambridge Companion to the First Amendment and Religious Liberty, edited by Professors Michael Breidenbach and Owen Anderson. I was pleased to contribute a chapter to the book.

More Thoughts About Equal Treatment and the Coming Disagreements

I have a follow-up post at Mirror of Justice to the post immediately below. A bit:

But as the crisis reaches a second stage–an emergency of a different kind, now a more chronic or enduring condition–and as discretionary government decisions are made both as respects relaxing the closures and prosecuting violations of rules, the powerful psychological draw of equality as equal treatment starts to assert itself. Discretionary decisions require discrimination, and it’s at this point that considerations of unfairness become stronger in people’s psyche.

The trouble is that resentments about unequal treatment depend upon other, deeper judgments about the nature and value of various kinds of human activities. These judgments are signaled by the use of terms like “essential” but they aren’t really resolved by them. Partisans of one or another sort of human activity or way of life then develop arguments for distinguishing the truly essential from the less essential, but these are invariably thought to be spurious or worse by partisans of another sort of human activity or way of life. The arguments about equality really are only cover for other sorts of arguments that it would not be possible to resolve without the rhetorical appeal to equality. The real disagreements go not only to different ways of life, but to different conceptions of the good or goods of any particular human activity. Consider religious observance. If one’s view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores–treating the goods of the human activities that these places foster unequally–is perfectly justified. But if one’s view of the true goods of religious observance is very different, then one will not accept these arguments.

Temperatures Rising Quickly

Around the world, clashes between religious groups and civil authorities are rapidly escalating in response to the Coronavirus-related shutdowns and policies. As Mark and I noted in our most recent podcast, one of the problematic features of these conflicts is that they become more acute just as the earliest and most extensive shutdown policies begin to ease. Once we enter the period of discretionary decision-making, the unity in the face of danger that we saw in the earliest period of the crisis begins to fragment, and the old fault lines reappear.

See, for example, this stunning video taken a few days ago of a priest officiating a Mass in Gallignano, Italy, who was confronted several times by a policeman at the behest of the local mayor and ordered to cease the Mass, disperse the congregants, and put on a mask.

By the priest’s telling, there were 14 people in the church at the time, well spread out. The priest tells the policeman, “All right, I’ll pay the fine, or whatever there is to pay.” The priest goes on several times to decry the abuse of power of the local government. Italy, I am informed by my friends and colleagues, has decided on a date certain to reopen several parts of the country, including museums. Not so for churches. But the public-health related reasons for the political decision to distinguish between churches and museums have not been made plain.

See also the new decision by New York City Mayor Bill de Blasio to arrest those who violate the social distancing rules. Yet the way the Mayor put it in the following tweet yesterday seems to single out “the Jewish community” as somehow specially subject to the order. Or perhaps it’s religious groups generally.

I have seen images on the news of Orthodox Jewish groups congregating in Brooklyn. But I have also seen images of people gathering to watch airplanes flying around, congregating in parks, and not keeping to the social distancing rules in other public places like stores and subways. Yet the mayor didn’t see fit to single out these communities as specially problematic and perhaps specially subject to the new arrest policy. There are other controversies, too, that–whether they ultimately turn out to be justified criticisms of the mayor or not–contribute to the heightening anger and sense of unfairness.

UPDATE: When I posted, I had not seen this New York Times story, which contains the following response to de Blasio’s tweet:

Chaim Deutsch, a City Council member who represents a section of Brooklyn with a large Orthodox Jewish population, expressed anger and disbelief on Twitter, writing, “This has to be a joke.”

“Did the Mayor of NYC really just single out one specific ethnic community (a community that has been the target of increasing hate crimes in HIS city) as being noncompliant??” Mr. Deutsch wrote. “Has he been to a park lately? (What am I saying – of course he has!)”

I do not say that these policies and political judgments are not justified. They may well be necessary. But political decisions about who gets to “reopen” and who does not, or who gets targeted for arrest and who does not (decisions that are said by politicians to depend on that all-powerful modern criterion, “health”) will come under increasing scrutiny in the coming weeks and months and are likely to be the subject of increasing anger. It’s a dangerous moment, in my view.

Notre Dame Conference on Constitutions, Peoples, and Sovereignty

I was delighted to participate last week in this conference on “Constitutions, Peoples, and Sovereignty,” organized by Professor Jeff Pojanowski and co-sponsored by Notre Dame’s Program on Constitutional Structure and the Oxford Programme for the Foundations of Law and Constitutional Government. The conference was a day of discussion about a series of papers, one of which was my First Amendment Traditionalism.

The Cambridge Companion to the First Amendment and Religious Liberty (2020)

This volume is now available for purchase, with many worthwhile and interesting contributions. I have an essay in here as well, The Two Separations.

Check it out!

Conference at Washington University on the Religion Clauses

I’m at Washington University in St. Louis today for a conference put together by Professor John Inazu on “The Religion Clauses.” I’ll be talking about my recent piece, First Amendment Traditionalism, which extends the arguments about traditionalism in constitutional interpretation that I first made in The Traditions of American Constitutional Law. If you happen to be in the area, please do come by and say hello, as the conference is free and open to the public.

Review of Weiner’s “The Political Constitution”

I have a review of Professor Greg Weiner book, The Political Constitution: The Case Against Judicial Supremacy, over at the Liberty Fund blog. A bit:

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.

These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.

One view favors the claims of the political community as against the individual, asking judges to acquiesce in them; the other, the claims of the individual as against the political community, asking judges to vindicate them. Yet while the cost in abandoning the former may only be the loss of some implausible claims of individual freedom, the cost in forsaking the latter, Weiner says, is nothing less than the American republican soul…. 

The problem that the book sets out to solve is therefore dwarfed by the problem that it actually uncovers. If that problem—the problem of the endurance of “We the People” in America—is to be engaged (I say nothing of solved) from the judicial end of the table in a satisfactory way, it will not be through judicial disengagement and leaving the people to their own devices, as ill-considered and noxious as they may be. It will instead be at least in part by asking courts—carefully and always honoring the limits assigned to them by the Constitution—to engage with American constitutional law in ways that differ substantively from the partisans of “judicial engagement” whom Weiner criticizes.