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.

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.

Wurman Responds on Originalism and Stare Decisis

Professor Ilan Wurman (ASU) has a very good response to my piece on integrating originalism and stare decisis. Here is a little from the conclusion of his piece:

To summarize, any theory of precedent must recognize, as does Professor DeGirolami’s, that stare decisis is valuable “because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome.” But this requires a chain of decisions over time, and not a single Supreme Court decision; recognition that ultimately these decisions over time matter only because the numerous individuals at different times and places that have agreed are more likely to have agreed on the correct answer; and that the correct answer must be within the range of possible original meanings. Only by understanding these points can we see how it was possible for the Founders themselves to think that judges would be both originalist and bound by precedent.

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.”

On Religion in the Legal Academy

At the Liberty Fund site this morning, I have an essay on the scarcity of religious belief among American law professors. I explore the reasons for the scarcity and the effect the scarcity has on American legal education. And I reflect a bit on my own career choices. Here’s an excerpt:

This leads to the third question: what, if anything, should be done? Law schools could do more to seek out and promote candidates who bring religious perspectives to their work and teaching—something that would be entirely consistent with the laudable goal of increasing the representation of ethnic and racial minorities on law school faculties. I doubt such an effort will be forthcoming, though. For the reasons I’ve explained, most law professors see religious perspectives as irrelevant to their work and don’t perceive their absence as a serious problem. This is true even at law schools with religious affiliations—again, with some notable exceptions. Besides, increasing ideological diversity and inclusiveness is not a priority for most law faculties.

This is a pity, because religious perspectives on law would offer much to our students. It is not simply a matter of knowing the historical foundations of our laws or appreciating the critiques of the past. Religious perspectives would offer students insights into current legal controversies. For example, in America today, we are debating whether the state may constitutionally order churches to close during an epidemic. In legal terms, the cases often turn on a balancing test, in which courts weigh the government’s interest in curtailing an epidemic against the burden that closure imposes on the practice of religion. To understand the cases, students need to hear, not only the secular perspectives of most law professors, but the perspectives of people inside faith communities, who can explain why believers find orders to close such an imposition. The comparative absence of religious law professors makes it less likely students will hear both sides.

You can read the whole essay here.

Around the Web

Around the Web

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

Around the Web

Around the Web

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

Two New Religious Liberty Projects

Our friends at the J. Reuben Clark Law Society have asked us to pass along information about two new projects that may interest the readers of this blog, a new database on workpace religious accommodations and a fellowship for law students. More information at the links.

A New Book on Peguy

I first read some of Charles Péguy’s work in college, in a course taught by the great Rimbaud translator and Proust scholar, Wallace Fowlie. The course considered the thought of several important Catholic intellectuals of the late 19th and early 20th century pre- and inter-War period, focusing on French writers including Belloc, Bernanos, Maurras, and Mauriac (with a little Chesterton thrown in too for some national variety). What we read of Péguy’s writing at the time struck me as having a lot to say about law and politics–particularly on the difference between “mystique” and “politique” and the need for the unifying political leader (like a President, for example) to set himself apart from the ordinary machinations of party politics–and so it’s good to see this new volume to devoted to him. The book is Carnal Spirit: The Revolutions of Charles Péguy (University of Pennsylvania Press), by Matthew W. Maguire.

“It is rare for a thinker of Charles Péguy’s considerable stature and influence to be so neglected in Anglophone scholarship. The neglect may be in part because so much about Péguy is contestable and paradoxical. He strongly opposed the modern historicist drive to reduce writers to their times, yet he was very much a product of philosophical currents swirling through French intellectual life at the turn of the twentieth century. He was a passionate Dreyfusard who converted to Catholicism but was a consistent anticlerical. He was a socialist and an anti-Marxist, and at once a poet, journalist, and philosopher.

Péguy (1873-1914) rose from a modest childhood in provincial France to a position of remarkable prominence in European intellectual life. Before his death in battle in World War I, he founded his own journal in order to publish what he thought most honestly, and urgently, needed to be said about politics, history, philosophy, literature, art, and religion. His writing and life were animated by such questions as: Is it possible to affirm universal human rights and individual freedom and find meaning in a national identity? How should different philosophies and religions relate to one another? What does it mean to be modern?

A voice like Péguy’s, according to Matthew Maguire, reveals the power of the individual to work creatively with the diverse possibilities of a given historical moment. Carnal Spiritexpertly delineates the historical origins of Péguy’s thinking, its unique trajectory, and its unusual position in his own time, and shows the ways in which Péguy anticipated the divisions that continue to trouble us.”

A New Collection of Sources on Early Modern Europe

9780815373537To close out the week’s books, here is a new collection from Routledge on early modern Europe, A Sourcebook of  Early Modern European History, edited by Ute Lotz-Heumann (University of Arizona). Many foundational concepts in American church-state relations date from this period, and the book addresses a number of subjects that law and religion scholars will find interesting. Here’s the publisher’s description:

A Sourcebook of Early Modern European History not only provides instructors with primary sources of a manageable length and translated into English, it also offers students a concise explanation of their context and meaning.

By covering different areas of early modern life through the lens of contemporaries’ experiences, this book serves as an introduction to the early modern European world in a way that a narrative history of the period cannot. It is divided into six subject areas, each comprising between twelve and fourteen explicated sources: I. The fabric of communities: Social interaction and social control; II. Social spaces: Experiencing and negotiating encounters; III. Propriety, legitimacy, fidelity: Gender, marriage, and the family; IV. Expressions of faith: Official and popular religion; V. Realms intertwined: Religion and politics; and, VI. Defining the religious other: Identities and conflicts.

Spanning the period from c. 1450 to c. 1750 and including primary sources from across early modern Europe, from Spain to Transylvania, Italy to Iceland, and the European colonies, this book provides an excellent sense of the diversity and complexity of human experience during this time whilst drawing attention to key themes and events of the period. It is ideal for students of early modern history, and of early modern Europe in particular.

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