Prof. Michael Rappaport responds to my post from the other day about whether Justice Scalia’s originalism credentials are stronger than those of Justice Thomas. Rappaport says that “precedent was a widely followed practice of long-standing within the Anglo-American legal system at the time of the Constitution,” and “no Framer argued it would not be applied to the document, and that it was applied in the early years under the Constitution… [T]he claim that all precedent is unconstitutional or illegitimate is, in my view, quite mistaken.” I never made such a claim, and never denied that the framers were familiar with the common law concept of stare decisis. My point was that where precedent has diverged from the Constitution’s meaning, the judge’s loyalty should, except in extreme circumstances, be to the latter. (which, if one is an originalist, one believes is determined by the original meaning). The presence of extreme circumstances should not be indicated by some vague cost-benefit analysis, which would certainly empty originalism of its last pretense at objectivity, but in terms of whether that precedent is so generally accepted as to fairly represent the meaning of the constitutional provision at issue. But even then, the judge’s first loyalty should be to the Constitution, and not to its interpretive glosses, which can be and often are wrong. Obviously not all precedent is illegitimate. But any precedent can be illegitimate, and any precedent can be wrong. And when it is, it should be overruled in favor of a better reading of the Constitution—even where doing so disrupts many settled expectations. The Constitution, not the opinions of the Supreme Court, is the supreme law of the land, and prioritizing precedent over text runs the risk of making the justices, as H.L. Mencken once quipped, into law students who grade their own exams. Nobody has a right to a settled expectation that is founded on a perversion of the fundamental law, and the judges have no right to demand obedience when their decisions are out of step with the charter by which the people delegate authority to them.
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