68 Pages Posted: 6 Apr 2005
Date Written: April 6, 2005
One immediate tension that any conservative in the field of law must necessarily feel is between the demands of the text of the Constitution, as it was originally understood, and the demands of precedent. Conservative lawyers typically accept that the Constitution is higher law but disagree about whether that higher law is the enacted constitutional text or the traditions and precedents that have grown up over 215 years of governing under that text. Originalists like Professors Gary Lawson and Michael Stokes Paulsen argue that the key to constitutional meaning is to be found in the objective public meaning of key words and clauses as they were understood in 1787 or 1868. Textualists like Akhil Amar make the same point and argue that the Constitutional text is normatively better and more appealing than the doctrine that the Court has developed to interpret it.
In contrast, certain Burkean law professors like Thomas Merrill and Ernie Young have argued that it is a mistake to elevate the understandings of 1787 or 1868 above the understandings of all of the generations and justices that have lived under and construed the Constitution since its adoption. Some self professed Burkeans go even further and argue not just for tradition and practice as the well-spring of constitutional law but for Supreme Court doctrine and caselaw as being the only valid source of constitutional law, even when that caselaw flies in the face of tradition, as it does today with respect to abortion and gay rights. This theory of so-called common law constitutionalism is most ably defended by Professor David Strauss. A sophisticated variant on this theory is propounded by Professor Richard Fallon and, most recently, Professor Charles Fried has written that the Supreme Court is and ought to be controlled by its doctrine. In Roper v. Simmons, the juvenile death penalty case just decided by the Supreme Court, Justices Stevens and Ginsburg seemed to endorse common law constitutionalism when they explicitly justified the outlawing of the death penalty for 16 and 17 year olds as a matter of common law constitutional evolution.
I want in Part I of this essay to defend the textualism of Amar, Lawson, and Paulsen by arguing that in our constitutional culture there is a well-established Burkean tradition of venerating the text of the Constitution and of appealing to it to trump both contrary caselaw and contrary practices and traditions. I discuss ten famous examples, since 1937, of instances where the Court opted for constitutional text over doctrine and will argue that our constitutional tradition, unlike Britain's, is one where we venerate the document above all else. In discussing these ten instances in the last sixty-five years where we have let text trump caselaw or practice, I mean to show conclusively that in the United States all good Burkeans ought to be textualists. I will claim that American Burkeans who are not textualists are actually secret anglophiles who mistake the American Constitution for the British Constitution where there are islands of text in a sea of tradition, instead of the other way around.
I engage in a somewhat lengthy discussion of the ten big explicit or implicit overrulings since 1937 because I really want to show that our practice on big constitutional issues is to not give decisive weight to stare decisis concerns. I will therefore argue that it is the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey that is the true outlier and that all recent big constitutional issues except for abortion have been resolved based on differing interpretations of the constitutional text without reliance upon precedent. I will thus argue that it is the discussion in the Casey plurality opinion that does not conform to our actual settled practice and that ought to be overruled because our actual Burkean common law practice in this country is one of letting the document trump the doctrine with respect to big and controversial constitutional issues.
In Part II, I will ask what the framing generation of our original Constitution thought about the problem of text and precedent. I will argue that the views of the framers are best illustrated in the long fight over the constitutionality of the Bank of the United States, which was one of our earliest national constitutional controversies. My claim below is that the fight over the Bank of the United States ended not with McCulloch v. Maryland's famous endorsement of the constitutionality of the Bank, almost three decades after the Bank bill passed Congress, but with the veto by President Andrew Jackson of the effort to renew the Bank in 1832. Jackson's success in killing the Bank for being unconstitutional, some forty years after it was first created, shows that, early on, Americans venerated constitutional text over what Jackson called the "dangerous source of authority" which is "mere precedent."
In Part III, I consider the sophisticated and thought-provoking normative case that Burkean law Professor Thomas Merrill has made as to why conservatives and others should favor what he calls Burkeanism or conventionalism in constitutional interpretation over originalism. I consider each normative argument Professor Merrill makes and conclude that textualism as it is practiced in this country is more normatively appealing than the strong rule of stare decisis and of precedent that Professor Merrill argues for instead. In general, I disagree with Professor Merrill because I show he uses too short a time frame in concluding that precedent is democratic, preserves continuity with the past, and in arguing that courts failing to follow precedent is activist. In constitutional law, one's time horizon must be multi-generational, and, when the correct time horizon is used, I show that it is actually undemocratic and activist for the Supreme Court to follow precedent when it ought to follow the constitutional text.
Finally, in Part IV, I will ask whether in cases where there has been substantial reliance, as there was with the Bank, we ought to insist that long-standing precedents be challenged first by the political rather than the judicial branches of government. Here I will make only a limited claim. I will argue that whenever one of the political branches of the national government or a majority of the States challenge the Supreme Court with respect to its precedent, even of long-standing, the Court is duty bound to decide the constitutional question according to the original meaning of the text without regard to precedent or doctrine. If either the President or Congress reach a policy determination that a line of precedent is causing more trouble than will be caused by disrupting the interests of those who relied on that precedent, then the Court ought to defer to the political branches' judgment about the reliance issue and decide the underlying constitutional question according to its original meaning. I argue that the political branches are better than the Court at figuring out when there are reliance interests and when those reliance interests are trumped by the existence of a constitutional error.
I thus contend that the Supreme Court's plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey got matters exactly backwards when it claimed that the Court should adhere most stringently to precedent when it is challenged by public opinion through the vehicle of the president filing briefs urging the overruling of Roe v. Wade. I would claim that once the president files a brief asking the court to overrule, reliance interests are at an end and the Court is bound to decide the case on originalist, textualist grounds without regard to precedent.
My argument in this respect is related to but also is critically different from Professor Michael Stokes Paulsen's argument that Congress ought to be able to abrogate stare decisis by passing statutes. Professor Paulsen reaches his conclusion through an unacceptably broad understanding of congressional power under the Necessary and Proper Clause, which he would allow Congress to use to trump the Vesting Clause of Article III. I reach my conclusion, instead, by emphasizing the limits on the Supreme Court's power of judicial review due to the Constitution's Departmentalist system for enforcing itself. That system leads to three branch enforcement of the Constitution and to an obligation on the part of the Court to defer to the political branches on the political question of when a precedent is causing more harm than good, unless the Court can show that Congress's weighing of the costs and benefits of a given precedent lacks a rational basis.
This four part discussion takes on a vast array of topics concerning text, precedent, and Burkeanism. I have decided to address all of these topics together in one article (rather than in four separate articles) because I think my discussions in each of the four parts are clearly interrelated and always lead back to the same conclusions about our practice, original understanding, and policy concerns. I end up endorsing a modest doctrine of stare decisis in cases where, as Andrew Jackson said, "the acquiescence of the people and the States" seems well-settled because all three branches of the federal government have completely accepted a constitutional interpretation which departs from the original understanding. This is the case, for example, as to the constitutionality of paper money which is unjustifiable on originalist grounds but which is accepted by the American people as a settled precedent. Abortion, unlike paper money, is not an area where the acquiescence of the people and the States in Roe v. Wade is well-settled. For this reason, I conclude by urging that the Casey plurality opinion's discussion of stare decisis be overruled.
Suggested Citation: Suggested Citation
Calabresi, Steven G., The Tradition of the Written Constitution: Text, Precedent, and Burke (April 6, 2005). Available at SSRN: https://ssrn.com/abstract=700175 or http://dx.doi.org/10.2139/ssrn.700175