Does originalism really lead to an all-powerful Supreme Court?

May 15, 2012 | By TIMOTHY SANDEFUR

In his latest contribution to our exchange about the courts’ obligation to follow precedent, Prof. Michael Rappaport answers a question that I posed in the comments section of the Liberty Law Blog. He had argued that “the judicial power” conferred on courts by Article III of the Constitution obliges courts to follow precedent even where that precedent conflicts with the actual meaning of the Constitution, and that this rule is what the framers of the Constitution meant. I think this is not just wrong, but fallacious, since an originalist is committed to the Constitution’s original meaning as an overriding rule, so that whatever power the courts might have according to an originalist interpretation, they cannot have the power to disregard that overriding rule, even if instructed to do so. But I brought up a different question: how does Rappaport’s view comport with the principle that the people’s servants cannot give away the people’s sovereignty?

The bedrock principle of the Constitution is that government officials wield only delegated authority, so that their actions cannot exceed the limits of that delegation. The officials do not themselves have sovereignty; they people do. And as the Supreme Court put it in Stone v. Mississippi, this means that the legislature cannot make a binding promise not to exercise sovereign powers—they can’t give away the sovereignty that belongs to the people, and not to them. For the same reason, no lawmaker can ever create a permanent, unrepealable law.

Yet the same logic holds that interpretations of the Constitution that are wrong cannot bind succeeding generations. Judges, no less than legislators, enjoy only delegated authority—the authority to act on behalf of the people in a judicial capacity. And just as legislators can’t bargain away the police power, so judges cannot impose incorrect interpretations of the Constitution and then oblige subsequent generations to comply with those incorrect interpretations of the fundamental law. To do so would be like saying that the employee can interpret the employment contract in an incorrect way—say, misreading his duties or increasing his salary—and then bind the employer to follow that contract. This would be, as Hamilton said, “to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” And that just cannot be right.

Rappaport answers this by saying that the Constitution “allow[s] binding precedent…. [T]he people have authorized the Supreme Court to apply precedent rules that allow precedents that conflict with the original meaning.” But this does not answer my point. Nobody denies that precedent was a feature of common law in 1787 no less than today, and that courts are required to respect past decisions—but they were only to respect them, not to comply with them when they are plainly wrong. At the founding, precedent was not regarded as the law—precedent was regarded as evidence of the law, to be weighed in finding out what the law actually was. And the judge’s allegiance is to the law, not to the evidence thereof. Coke, Blackstone, and all the classic writers of the Anglo-American common law tradition recognized that where a previous decision was wrong, it was not entitled to obedience, simply because it was not law. So, since the constitutional hook on which Rappaport hangs this argument is “the judicial power” in Article III, one could just as easily argue the opposite—that “the judicial power” in Article III also includes the power to overrule incorrect prior precedent. And since the judges take an oath, not to the precedent, but to “this Constitution,” they are presumptively obliged to do so.

The question isn’t whether courts should respect precedent. I can’t imagine anyone denying that. The question is, rather, whether courts are bound to follow wrong precedent. And I think it’s pretty plain that they are not. On the contrary, there should be extremely good reasons for a court to continue to follow precedent where it is wrong.

What I think most remarkable about this question is that the original intent of originalism, so to speak, was to discipline courts—to prevent them from imposing their own will in the place of law. The idea was that courts should be obliged to enforce the law—which was seen as the intent or the original public meaning of the document—and not their own will. But here we have an argument in the vocabulary of originalism that would elevate the decisions of courts above the law, and destroy the discipline that originalism was meant to impose. If courts are obliged to follow precedent rather than the actual meaning of the Constitution, what is left of originalism? How then does the judiciary not become all-powerful?

I respect Prof. Rappaport’s work quite a lot. But in this case, I fear he is stretching the term “the judicial power” so broadly to allow contemporary considerations of utility and consistency to override the judge’s obligation to interpret a written text faithfully—and thus to elevate the power of judges in just the way that originalism was meant to counteract. And when you recall that according to originalism, the original meaning of a written provision simply is the law, then we see that this interpretation of “the judicial power” would bind courts to follow precedent that is contrary to the law itself. I find that a hard interpretation to accept. I think a more plausible reading—one that consists better with the classical liberal premises of the founding as well as legal practice at the time—is to say that while the framers intended the judges to “appreciate” precedent as “strong evidence of the law,” they did not mean for judges to be bound by precedents that are wrong.

Update: To clarify, I recognize that Rappaport is arguing that there are certain objective factors that should go into a court’s assessment of precedent; that it is not a mere matter of judicial will, and that there really are times when a court should overrule precedent. But then it’s those factors, and not the originalism, that’s doing the work in his model. If, as Rappaport argues, courts should weigh those factors themselves, and if those factors do not include an overriding commitment to original meaning, then judges decide whether or not to comply with non-originalist precedent by applying the rubric of considerations that Rappaport finds to be overriding. Now, he may be right about that part—in fact, I think he is. But that is not an argument rooted in originalism. That’s an argument from purposivism, or textualism, or structuralism, or something like that. It is at least one step back from questions of original meaning. In other words, it’s like saying “the original intent of the Constitution was to let judges follow their own interpretive methodologies.” But that has about as much in common with originalism, as I see it, as deism has in common with Christianity! It makes originalism into a sort of formalistic invocation of a higher power that the judges can then ignore when they really get down to business.