Stare decisis and the constitution: An essay on constitutional methodology

New York University Law Review

Volumn 76, Issue 2, 2001, Pages 570-596

  Fallon Jr , Richard H ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 23044526180     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (125)

1. See Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535, 1538 n.8 (2000) ("The essence of the doctrine . . . is adherence to earlier decisions, in subsequent cases . . . even though the court in the subsequent case otherwise would be prepared to say, based on other interpretive criteria, that the precedent decision's interpretation of law is wrong.");
2. see also Larry Alexander, Constrained by Precedent, 63 S. Cal. L. Rev. 1, 4 (1989) (focusing only on "constraint by incorrectly decided precedents" (emphasis omitted));
3. Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 575 (1987) ("If we are truly arguing from precedent, then the fact that something was decided before gives it present value despite our current belief that the previous decision was erroneous."). The doctrine takes its name from the Latin maxim "stare decisis et non quieta movere - stand by the thing decided and do not disturb the calm."
4. James C. Rehnquist, The Power That Shall Be Vested in a Precedent: Stare Decisis, the Constitution, and the Supreme Court, 66 B.U. L. Rev. 345, 347 (1986).
5. 410 U.S. 113 (1973).
6. 384 U.S. 436 (1966).
7. See Dickerson v. United States, 120 S. Ct. 2326, 2335-36 (2000) (upholding Miranda on basis of stare decisis); Planned Parenthood v. Casey, 505 U.S. 833, 861 (1992) (affirming that Roe should be upheld on basis of stare decisis, "with whatever degree of personal reluctance any of us may have" for this result).
8. See, e.g., Agostini v. Felton, 521 U.S. 203, 235-36 (1997) ("As we have often noted, '[s]tare decisis is not an inexorable command,' but instead reflects a policy judgment that 'in most matters it is more important that the applicable rule of law be settled than that it be settled right.'" (quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991), and Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting))); Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996) (recognizing that "we always have treated stare decisis as a 'principle of policy'" (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940))).
9. Paulsen, supra note 1.
10. U.S. Const. art. I, § 8, cl. 18 ("The Congress shall have Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.").
11. Paulsen, supra note 1, at 1540-41.
12. Id. at 1539.
13. Id. at 1596-97.
14. The appropriate role of stare decisis in statutory cases raises different questions, since the Supreme Court's statutory rulings are subject to override by Congress. See, e.g., Neal v. United States, 516 U.S. 284, 295 (1996) ("One reason that we give great weight to stare decisis in the area of statutory construction is that 'Congress is free to change this Court's interpretation of its legislation.'" (quoting Ill. Brick Co. v. Illinois, 431 U.S. 720, 736 (1977))); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) (stating: Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. (emphasis added) (citation omitted)); Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 703-04 (1999) ("Amidst all the contradictions and retractions in the modern Court's doctrine of precedent, one point has achieved an unusual degree of consensus: that stare decisis 'has great weight . . . in the area of statutory construction' but 'is at its weakest' in constitutional cases." (omission in original) (footnote omitted)). In this Essay, I put statutory cases entirely to one side and focus exclusively on constitutional cases.
15. Dickerson v. United States, 120 S. Ct. 2326, 2336 (2000) (internal quotation marks omitted); see also Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 757 (1988) ("[P]recedent binds absent a showing of substantial countervailing considerations.").
16. See, e.g., Agostini v. Felton, 521 U.S. 203, 235-36 (1997) (overruling Aguilar v. Felton, 473 U.S. 402 (1985)); Seminole Tribe v. Florida, 517 U.S. 44, 72 (1996) (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989)).
17. Well-known examples include the persistent refusals of some Justices to accept Roe v. Wade's recognition of a "fundamental" right to abortion, see, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 950-53 (1992) (Rehnquist, C.J., concurring in part and dissenting in part), and the often reiterated insistence of Justices Brennan and Marshall that the death penalty is per se unconstitutional, see, e.g., Sorola v. Texas, 493 U.S. 1005, 1011 (1989) (Brennan, J., joined by Marshall, J., dissenting from denial of certiorari). For more on this practice, see Richard H. Fallon, Jr., The Supreme Court, 1996 Term - Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54, 110-11 & 111 n.324 (1997) (discussing Justices' refusals to accept precedent as controlling);
18. Maurice Kelman, The Forked Path of Dissent, 1985 Sup. Ct. Rev. 227, 248-58 (discussing refusal to acquiesce as option for Justices initially in dissent).
19. See Fallon, supra note 14, at 111-13 ("Some questions, once having been resolved, are subsequently assumed to be off the table, even though they were sharply contested in the past and could conceivably become controverted again."); Monaghan, supra note 12, at 744 ("Many constitutional issues are so far settled that they are simply off the agenda."); cf. Benjamin N. Cardozo, The Nature of the Judicial Process 149 (1921) ("[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him.").
20. See Casey, 505 U.S. at 854 (stating: [W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.).
21. Within the general category of constitutional cases, it is sometimes suggested that "[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved." Payne v. Tennessee, 501 U.S. 808, 828 (1991). But this view has attracted dissents. See, e.g., id. at 851-52 (Marshall, J., dissenting) (worrying that "limiting full protection of the doctrine of stare decisis to 'cases involving property and contract rights'. . . sends a clear signal that essentially all decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination"). For a historical perspective, see Lee, supra note 11, at 687-703. Drawing a different line, a bare majority of the Court stated in Casey that stare decisis carries special force when a precedent resolved an "intensely divisive controversy," such as that involved in Roe v. Wade, 410 U.S. 113 (1973). Casey, 505 U.S. at 866. By contrast, the dissenting Justices in Casey rejected this "truly novel principle" as unsupported and untenable. Id. at 958 (Rehnquist, C.J., dissenting). Apart from the question whether stare decisis should carry different weight in different kinds of cases, it is clear that some Justices attach greater significance to stare decisis than do others. See Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 76 (1991) (discussing "apparent lack of consistency in the Justices' standards or reasons for overruling precedents" and invoking stare decisis).
22. See Paulsen, supra note 1, at 1570-82; see also id. at 1550 ("Nothing in the text, history or structure of the Constitution . . . supports the conclusion that the Constitution itself prescribes a judicial policy of stare decisis . . . ."). Paulsen occasionally refers to other possible sources of constitutional authority, including "judicial precedent," id. at 1550, 1570, or "customary practice," id. at 1550. But these references are undermined by the thesis on which he relies to establish that stare decisis is a "policy" rather than a doctrine of constitutional status. According to Paulsen, precedent properly performs an "'information' function (providing prior and potentially persuasive thinking to a present interpreter)." Id. at 1544. But his thesis necessarily denies that precedent is in any stronger way constitutive of what the Constitution currently means or how it currently should be interpreted or applied - a point borne out in his citation to previous writing of his own that is more explicit about this matter. See id. at 1548-49 & 1548 n.38 (citing Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Proposals from the Twenty-Third Century, 59 Alb. L. Rev. 671, 680-81 (1995)). Paulsen describes the cited pages of the previous article as arguing that under the reasoning of Marbury and The Federalist No. 78, "the Constitution must always be given preference over the faithless acts of mere government agents contrary to the Constitution. If this proposition is true, it follows that no court should ever deliberately adhere to what it is fully persuaded are the erroneous constitutional decisions of the past. To do so is to act in deliberate violation of the Constitution." Id. at 1549 n.38 (quoting Paulsen, supra).
23. Id. at 1550.
24. Id. at 1550, 1583; see also id. at 1543-51 (developing supporting arguments).
25. Two quotations receive special prominence. See id. at 1547-49. The first is from Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992): "Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an 'inexorable command,' and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-11 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Paulsen, supra note 1, at 1547. The second quotation Paulsen sets out is from Agostini v. Felton, 521 U.S. 203, 235 (1997): "As we have often noted, '[s]tare decisis is not an inexorable command,' Payne v. Tennessee, 501 U.S. 808, 828 (1991), but instead reflects a policy judgment that 'in most matters it is more important that the applicable rule of law be settled than that it be settled right,' Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). That policy is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions." Paulsen, supra note 1, at 1547.
26. See Paulsen, supra note 1, at 1570-82.
27. Paulsen appears to be aware of the anomaly and hints that the Constitution indeed may forbid the Court to decide constitutional cases based on the authority of past decisions that were erroneous on the merits. See id. at 1548 n.38. For an explicit argument to this effect, see generally Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23 (1994).
28. See infra Part IV.
29. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
30. Paulsen anticipates this objection and argues, unpersuasively in my view, that Congress's power to eliminate the force of stare decisis need not imply a power to enhance its authority. See Paulsen, supra note 1, at 1594-96. According to Paulsen, a rule mandating adherence to stare decisis would "limit[] the freedom of judges to decide cases on their merits," in contravention of Article III, whereas the abrogation of stare decisis would "confine judges to deciding cases on the merits, without regard to extrinsic policy considerations." Id. at 1596. The fallacy of this argument lies in its unsupported assumption that stare decisis is simply irrelevant to the constitutional "merits." As I have suggested already and shall argue more fully below, if stare decisis were wholly irrelevant to the constitutional merits, its invocation to support a result contrary to that commanded by the Constitution would be itself unconstitutional. But if stare decisis is relevant to the constitutional merits, even if not necessarily dispositive in every case, then congressional efforts to mandate either greater or lesser authority for constitutional stare decisis stand on the same footing and involve similar if not identical constitutional considerations.
31. Proposals to reduce or eliminate the force of constitutional stare decisis need not necessarily identify constitutional "meaning" with the original understanding. For example, it would be possible to equate constitutional meaning with the best "moral reading" of constitutional language. See Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 2-38 (1996) (describing "moral reading" approach to constitutional interpretation).
32. See infra Parts II.A, II.B (discussing constitutional practice); Part III (discussing legitimacy).
33. Paulsen, supra note 1.
34. See supra Part I.
35. See, e.g., Anastasoff v. United States, 223 F.3d 898, 899-900 (8th Cir.) (holding that Article III incorporates doctrine of precedent and that judicially established rule barring citation of unpublished opinions is therefore unconstitutional), vacated as moot on reh'g en bane, 235 F.3d 1054 (8th Cir. 2000); Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 1997 (1994) ("[T]he precept that like cases should be treated alike . . . [is] rooted both in the rule of law and in Article III's invocation of the 'judicial Power'. . . ."); Monaghan, supra note 12, at 754 (acknowledging availability of such argument).
36. U.S. Const. art. VI, § 2.
37. These arguments come within the category that Akhil Amar recently has labeled "documentarian." Akhil Reed Amar, The Supreme Court, 1999 Term - Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 26 (2000) (describing "documentarians" as those whose approach to constitutional interpretation emphasizes "the amended Constitution's specific words and word patterns, the historical experiences that birthed and rebirthed the text, and the conceptual schemas and structures organizing the document").
38. These arguments more nearly approximate Professor Amar's "doctrinalist" category. See id. at 27 (identifying "doctrinalist" mode of constitutional interpretation that "strive[s] to synthesize what the Supreme Court has done, sometimes rather loosely, in the name of the Constitution").
39. See, e.g., Sylvia Snowiss, Judicial Review and the Law of the Constitution 13-44 (1990) (arguing that during early, formative years of American constitutional history, it was widely believed that judicial nullification of statutes should occur only in cases of plain unconstitutionally);
40. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215, 240 (2000) (describing concept of judicial review as constrained to situations "where the legislature unambiguously violated an established principle of fundamental law");
41. Gordon S. Wood, The Origin of Judicial Review Revisited, or How the Marshall Court Made More out of Less, 56 Wash. & Lee L. Rev. 787, 798-99 (1999) (asserting that "for many Americans in the 1790s . . . [judicial review] remained an extraordinary and solemn political action . . . to be invoked only on the rare occasions of flagrant and unequivocal violations of the Constitution" and was "not to be exercised in doubtful cases of unconstitutionality and was not yet accepted as an aspect of ordinary judicial activity").
42. See infra Part III.B.
43. See Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1194-1209 (1987) (discussing relevance to constitutional adjudication of constitutional language, original understanding, constitutional structure or theory, precedent, and value arguments).
44. The Eighth Circuit recently developed such an argument in Anastasoff v. United States, 223 F.3d 898, 900-04 (8th Cir.) (invalidating rule barring citation to unpublished precedents), vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000). For further discussion of Anastasoff, see infra note 115.
45. The Federalist No. 78, at 399 (Alexander Hamilton) (Bantam Books 1982). Paulsen so recognizes. See Paulsen, supra note 1, at 1571-72 (citing The Federalist No. 78).
46. See, e.g., Morton J. Horwitz, The Transformation of American Law, 1780-1860, at 8-9 (1977) (reporting that colonial courts employed "a strict conception of precedent" and "believed that English authority settled virtually all questions for which there was no legislative rule"); see also 1 William Blackstone, Commentaries *69 ("[I]t is an established rule to abide by former precedents . . . ."). Interestingly, "[l]egal historians generally agree that the doctrine of stare decisis [was] of relatively recent origin" at the time of the founding and had begun to emerge only during the eighteenth century. Lee, supra note 11, at 659; see also id. at 659-61 (discussing historical development of stare decisis). The earlier view - rooted in the so-called "declaratory theory" of law - was that "prior decisions were not law in and of themselves but were merely evidence of it." Id. at 660.
47. Paulsen, supra note 1, at 1578 n.115.
48. Lee, supra note 11, at 718. According to Professor Lee, James Madison relied largely on judicial precedent to explain why he had come to accept the constitutionality of the Bank of the United States - and indeed as President signed a bill establishing a second such bank - despite opposing the Bank's initial chartering on constitutional grounds. See id. at 664-65, 709-12. In the historical context, it seems doubtful how much weight Madison would have placed on judicial precedent alone. His more general view appears to have been that the meaning of vague constitutional language both could and should be fixed by the construction put on it by the American people, acting through relevant political institutions, including Congress as well as the courts. See Drew R. McCoy, The Last of the Fathers: James Madison and the Republican Legacy 79-81 (1989) (arguing that Madison believed that constitutional precedents set by Congress should be binding);
49. H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 940 (1985) (describing Madison's conviction that, though the "words of the Constitution did not authorize" a national bank, "Congress, the President, the Supreme Court, and (most important, by failing to use their amending power) the American people had for two decades accepted the existence and made use of the" institution, thereby demonstrating persuasive "widespread acceptance"). At the very least, however, Madison believed that established practices - possibly including judicial practices - are relevant in determining how the Constitution should be interpreted. See Powell, supra, at 939 ("[Madison] consistently thought that 'usus,' the exposition of the Constitution provided by actual government practice and judicial precedents, could 'settle its meaning . . . .'" (footnotes omitted)).
50. See Paulsen, supra note 1, at 1578.
51. Joseph Story, Commentaries on the Constitution of the United States § 378 (Fred B. Rothman & Co. 1991) (1833). Admittedly, Story - who wrote at a time of shifting and sometimes conflicting intellectual currents - was an ardent nationalist whose views on important issues of constitutional methodology diverged sharply from those of leading Jeffersonians and their successors. See Powell, supra note 42, at 942, 946. At the very least, however, his view was prominent and well reasoned and was destined to prove influential.
52. See, e.g., Plaut v. Spendthrift Farm, 514 U.S. 211, 218-19 (1995) (recognizing congressional interference with finality of judicial judgments as abridging core judicial power). See generally Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267 (1993) (affirming that Necessary and Proper Clause does not license Congress to infringe on core powers and responsibilities of other branches).
53. See generally Richard H. Fallon, Jr., Daniel J. Meltzer & David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 99-123 (4th ed. 1996) (discussing, inter alia, "the requirement of finality" for case to be justiciable in Article III court). The "finality" doctrine traces to Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), in which a reporter's footnote listed circuit court opinions holding that the constitutional separation of powers requires that the decisions of Article III courts be final and not subject to executive revision. See id. at 410 n.3.
54. See Plant, 514 U.S. at 218-19.
55. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) ("We reaffirm that '[i]f a precedent of this Court has direct application in a case . . . the Court of Appeals should follow the case which directly controls . . . .'" (alteration in original) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))); Hutto v. Davis, 454 U.S. 370, 374-75 (1982) (per curiam) (stating that "unless we wish anarchy to prevail" in federal court system created by Constitution, "a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be"). But see Michael Stokes Paulsen, Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused, 7 J.L. & Religion 33, 77-78 (1989) (arguing that lower court judges are not literally bound to enforce higher court precedent that they regard as fundamentally wrong, but may instead recuse themselves).
56. See Paulsen, supra note 1, at 1543-51.
57. Agostini, 521 U.S. at 235 (quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991)); accord Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996) (same).
58. Constitutional principles are frequently subject to "balancing," and even the most robust can often be overcome in the face of a "compelling" governmental interest. See, e.g., Fallon, supra note 14, at 68-69, 77-83, 88-90 (discussing instances in which Supreme Court has considered strength of governmental interest when applying various kinds of balancing tests to constitutional issues).
59. On the historical roots of stare decisis, see generally Lee, supra note 11.
60. Robert H. Bork, The Tempting of America: The Political Seduction of the Law 158 (1990).
61. Dickerson v. United States, 120 S. Ct. 2326, 2336 (2000).
62. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 686 (1981) (endorsing Justice Frankfurter's assertion that "'a systematic, unbroken, executive practice, long pursued . . . and never before questioned . . . may be treated as a gloss on [the Constitutional grant of] "Executive Power"'" (second omission in original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring))); Washington v. Davis, 426 U.S. 229, 248 (1976) (rejecting proposed rule that "would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes"); Bork, supra note 53, at 156-58 (arguing that it is "entirely proper" for court to conclude that certain practices or outcomes are "so accepted by the society, so fundamental to the private and public expectations of individuals and institutions" that they should not be overturned by judicial decree).
63. Interestingly, Professor Paulsen - despite his more characteristic emphasis on the Constitution's plain language, its original understanding, and its structure - says explicitly at one point that those who would uproot entrenched practices bear an "extremely heavy burden of persuasion." Paulsen, supra note 1, at 1583. Paulsen deploys this argument to support his view that Congress could eliminate stare decisis by statute. According to him, arguments purporting to deny Congress this power are incompatible with a number of accepted practices, including congressional specification of judicial rules of decision and congressional abrogation of "prudential" standing requirements. See id. at 1582-90. For discussion of why these admittedly accepted practices do not support Paulsen's thesis concerning stare decisis, see infra notes 99-101 and accompanying text.
64. There have been occasional complaints and expressions of doubt. For example, Marshall's successor as Chief Justice, Roger Taney, once suggested that the Court might dispense with stare decisis in constitutional cases. See The Passenger Cases, 48 U.S. (7 How.) 283, 470 (1849) (Taney, C.J., dissenting). But Taney's suggestion occurred in a solitary dissent, and he subsequently appeared to accept and apply a more standard position. See Lee, supra note 11, at 717-18 & 718 n.377 (noting Taney's adherence, in later case, The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851), to constitutional precedent, especially in contract or property cases, even though it was "'arbitrary'" and "'unjust'" (quoting id. at 457)).
65. See, e.g., South Carolina v. Gathers, 490 U.S. 805, 825 (1989) (Scalia, J., dissenting) (stating that, when deciding what weight should be accorded entrenched precedent, "I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face"); William O. Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949) ("A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it."); see also Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 319 n.349 (1994) ("The Constitution and federal statutes are written law (not common law); judges are bound by their oaths to interpret that law as they understand it, not as it has been understood by others . . . .").
66. Invocation of the judicial oath is question-begging and analytically unhelpful. Executive officials also take oaths. The ultimate question must be what the Constitution, as properly interpreted, requires officials - including Supreme Court Justices - to do. It is by no means obvious that the Constitution requires Justices to follow their personal views of how the Constitution best would be interpreted without regard to the positions taken by other Justices and other officials in reaching past decisions. Indeed, an obvious practical objection to this position - especially if it were generalized to all oath-taking officials - is that it would invite something approaching chaos. See Monaghan, supra note 12, at 750 (explaining that stare decisis enhances political stability by removing divisive and threatening questions from agenda and preventing "failure of confidence in the lawfulness of fundamental features of the political order"). As noted above, it is beyond the ambition of this Essay to assess the precise weight that should be given to stare decisis in particular cases. See supra note 17 and accompanying text.
67. See Fallon, supra note 37, at 1237-43, 1248-51 (offering and defending approach to constitutional interpretation that prescribes search for coherence among various relevant considerations); see also Ronald Dworkin, Law's Empire 52-53, 98-99, 252-53 (1986) (describing legal interpretation generally as effort to impose single, coherent interpretive order on relevant materials).
68. See Fallon, supra note 37, at 1204-09, 1262-68 (discussing pertinence of "value arguments" to constitutional decisionmaking).
69. The plainest example is Brown v. Board of Education, 347 U.S. 483 (1954), in which John W. Davis, representing South Carolina, defended racial segregation based partly on its entrenched status and purportedly foundational role in the social order. See Monaghan, supra note 12, at 761. Clearly "other overriding considerations eviscerated the strength of this claim." Id.
70. See Fallon, supra note 14, at 111-13 (discussing stare decisis as at least part of reason that contentious questions of constitutional law, once settled, are considered "off the table," so that settled doctrine becomes "a focal point for stable equilibrium").
71. See Monaghan, supra note 12, at 727-39 (arguing that holdings such as these could not be sustained under approach requiring decision in accord with original understanding and, accordingly, that their continuing authority rests largely on stare decisis).
72. Cf. Charles Fried, Constitutional Doctrine, 107 Harv. L. Rev. 1140, 1156 (1994) (concluding "that respect for precedent protects expectations, engenders reliance, and procures stability, but it does this first of all by assuring the public that it is ruled by law so conceived"); Monaghan, supra note 12, at 748-52 (discussing Court's function in promoting social stability and relationship between stability and Court legitimacy).
73. Cf. Amar, supra note 33, at 133 (criticizing constitutional adjudication based largely on judicial doctrine on the ground that "[t]he Constitution is wiser than the Court").
74. See David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 883 (1996) (arguing that judicial precedent functions as operative constitutional law of United States).
75. The classic modern argument to this effect is that of H.L.A. Hart. See H.L.A. Hart, The Concept of Law 100-23 (2d ed. 1994). Although Hart suggested that the relevant social practices could be described by reference to "rules" and a "rule of recognition," this terminology is probably misleading.
76. See Frederick Schauer, Amending the Presuppositions of a Constitution, in Responding to Imperfection: The Theory and Practice of Constitutional Amendment 145, 150 (Sanford Levinson ed., 1995) ("There is no reason to suppose that the ultimate source of law need be anything that looks at all like a rule . . . or even a collection of rules, and it may be less distracting to think of the ultimate source of recognition . . . as a practice."). Hart's deep point, however, does not depend on whether relevant practices are best described as rule governed. His crucial insight is that law is rooted in social practices and attitudes. Even Professor Dworkin, the modern jurisprudential writer widely regarded as Hart's great rival, seems to agree that the starting point for understanding law must be accepted legal "practice." See Dworkin, supra note 60, at 254-58, 397-99.
77. See, e.g., Dickerson v. United States, 120 S. Ct. 2326, 2343 (2000) (Scalia, J., dissenting) (attacking Miranda as lacking constitutional support, and criticizing Court's refusal to overrule it as "'illegitimate exercise of raw judicial power'" (quoting Oregon v. Elstad, 470 U.S. 298, 370 (1985) (Stevens, J., dissenting)); Planned Parenthood v. Casey, 505 U.S. 833, 865 (1992) (stating, in discussion of constitutional judicial authority, that "the Court's power lies . . . in its legitimacy"); id. at 996-98 (Scalia, J., dissenting) (arguing that Court in Casey wrongly defined legitimacy and misinterpreted effect on legitimacy caused by upholding Roe); Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw. U. L. Rev. 100, 102 (1985) (arguing that legitimacy issue arises when Supreme Court "invalidates official conduct without finding an actual constitutional violation").
78. Cf. David Copp, The Idea of a Legitimate State, 28 Phil. & Pub. Aff. 3, 3-5 (1999) (using term "legitimacy" in roughly this way to analyze notion of "legitimate state").
79. Cf. John Rawls, A Theory of Justice 96 (rev. ed. 1999) ("Obligatory ties presuppose just institutions, or ones reasonably just in view of the circumstances.").
80. See generally Thomas Hobbes, Leviathan 98-102 (Michael Oakeshott ed., Collier Books 1962) (1651) (asserting intolerability of human life in absence of recognized legal authority capable of maintaining order).
81. Joseph Raz, On the Authority and Interpretation of Constitutions: Some Preliminaries, in Constitutionalism: Philosophical Foundations 152, 173-74 (Larry Alexander ed., 1998).
82. See Rawls, supra note 71, at 99 (identifying "fundamental natural duty . . . of justice" that "requires us to support and to comply with just institutions that exist and apply to us"). This assertion rests directly on what Rawls characterizes as a "natural duty" of justice, id., but it is in no sense incompatible with, and indeed can be buttressed by, other arguments, including an "argument from consequences" and an "argument from communal obligations," Chaim Gans, Philosophical Anarchism and Political Disobedience 89 (1992). Rawls himself acknowledges that "those who assume public office, say, or those who, being better situated, have advanced their aims within the system" have additional obligations rooted in a "principle of fairness" that is distinct from, but in no way inconsistent with, the more fundamental and generally applicable duty of justice. Rawls, supra note 71, at 100.
83. See Raz, supra note 73, at 173 ("As long as they remain within the boundaries set by moral principles, constitutions are self-validating in that their validity derives from nothing more than the fact that they are there." (emphasis omitted)).
84. See Kent Greenawalt, The Rule of Recognition and the Constitution, 85 Mich. L. Rev. 621, 653-54 (1987) (observing that authority of precedent rests on acceptance).
85. See supra Part II.A.
86. See Fallon, supra note 14, at 111-12 (noting questions about correctness of these decisions if examined as matters of "first principle").
87. See, e.g., Monaghan, supra note 12, at 750.
88. Cf. Greenawalt, supra note 76, at 653-54 (noting that authority of precedent cannot be derived directly from Constitution).
89. See, e.g., Edwin Meese, III, The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S. Tex. L. Rev. 455, 465 (1986) ("The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is the reason the Constitution is the fundamental law.");
90. see also Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L.J. 1085, 1098 (1989) (describing "[t]he majoritarian argument for originalism" as reflecting premise that "the Constitution gets its legitimacy solely from the majority will as expressed at the time of enactment").
91. See U.S. Const. pmbl. ("We the People of the United States, in Order to . . . secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.").
92. At least some members of the generation that wrote and ratified the Constitution, including Thomas Jefferson and Thomas Paine, recognized this fact. See Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy 138-50 (1995) (describing anti-aristocratic sentiments and faith in scientific progress that led both men to reject "precommitment" as foundation of authority); id. at 141 (characterizing Jefferson as concluding that "[a] constituent assembly in Philadelphia . . . can no more legislate for future Americans than for Australians or Chinese").
93. Cf. Paul Brest, The Misconceived Question for the Original Understanding, 60 B.U. L. Rev. 204, 225-26 (1980) (noting that most Americans have displayed no more than passive "acquiescence" toward constitutional regime).
94. See generally Dworkin, supra note 60, at 3-4, 13 (emphasizing that law is "argumentative" practice). For a discussion of varieties of constitutional theories and their differing methodological commitments, see generally Richard H. Fallon, Jr., How to Choose a Constitutional Theory, 87 Cal. L. Rev. 535 (1999).
95. See Dworkin, supra note 60, at 72, 89-90 (asserting that "[p]aradigms anchor interpretations" and explaining why their status as such is provisional only).
96. See id. at 87-90, 254-58 (arguing that judges decide hard cases by determining how those cases should be resolved within theory that best fits and rationalizes relevant practices and authorities).
97. See id. at 65-73, 98-101 (maintaining that interpretation includes "reforming" stage in which interpreter can identify "mistake[s]"); see also id. at 89-90 ("Suddenly what seemed unchallengeable is challenged, a new or even radical interpretation . . . is developed . . . . Paradigms are broken, and new paradigms emerge.").
98. U.S. Const. art. VI, § 2.
99. See supra notes 23-24, 31-32 and accompanying text.
100. See supra Parts II.B, III.A.
101. See supra Part II.A.
102. See Monaghan, supra note 12, at 754-55 (noting that "[o]nce it is acknowledged that stare decisis should play a role in constitutional adjudication," question remains whether it "inheres in 'the judicial power' of Article III" or "possess[es] the nature of constitutional common law" subject to congressional override).
103. See Henry Paul Monaghan, The Supreme Court, 1974 Term - Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 2-3 (1975) (describing legal "rules drawing their inspiration and authority from, but not required by, various constitutional provisions" and thus "subject to amendment, modification, or even reversal by Congress").
104. See supra notes 24-27 and accompanying text.
105. 5 U.S. (1 Cranch) 137 (1803).
106. This argument again must appeal to entrenched understandings of the judicial role. Article III does not specify the sources of authority to which the courts properly appeal, and early judicial practice suggests an inchoate and fluid, rather than a fixed, understanding both of the judicial role, see Adrian Vermeule, Judicial History, 108 Yale L.J. 1311, 1336-37 (1991), and of the nature and scope of judicial review, see Snowiss, supra note 35, at 1-9 (noting uncertain and limited expectations among founding generation).
107. I do not mean to suggest that the courts are the only actors in the constitutional scheme with any role in determining constitutional meaning. As I have argued elsewhere, the courts can, and indeed sometimes must, share responsibility for implementing the Constitution successfully. See Fallon, supra note 14, at 141-42 ("[I]mplementing the Constitution . . . is a project that necessarily involves many people (not just courts) and often calls for accommodation and deference."). Judicial deference to other institutions is sometimes constitutionally appropriate - though, with respect to constitutional issues, the courts determine for themselves how much deference to accord and are not subject to congressional dictate. I agree with Michael McConnell that Congress should be viewed as having a limited capacity to substitute its reasonable interpretive judgments for those of the judicial branch when legislating pursuant to Section 5 of the Fourteenth Amendment. See Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 194-95 (1997). But this position, which rests largely on Section 5's distinctive language and history, was rejected by the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997) (striking down Religious Freedom Restoration Act as not within Congress's Section 5 power). Although I would not endorse the Boerne decision as written, the Court's opinion strongly supports the proposition that the power to render authoritative constitutional determinations - and thus, presumably, to identify relevant sources of constitutional authority - resides exclusively in the judicial branch. See id. at 524 ("The power to interpret the Constitution in a case or controversy remains in the Judiciary.").
108. See Paulsen, supra note 1, at 1582-90.
109. see id.
110. Professor Paulsen's strongest example involves Congress's recognized power to displace what the Court has characterized as "prudential" limitations on standing doctrine that go beyond the absolute constitutional requisites under Article III. See id. at 1585-86. To be constitutionally valid, prudential standing limitations would have to be authorized constitutionally, but the Court has held that they are subject to displacement by Congress. See, e.g., Fed. Election Comm'n v. Akins, 524 U.S. 11, 19-20 (1998) (finding that Federal Election Campaign Act's conferral of standing on "[a]ny party aggrieved" overrode otherwise applicable "prudential" limitations on standing (internal quotation marks omitted)); Bennett v. Spear, 520 U.S. 154, 162-66 (1997) (holding prudential restrictions overcome by Endangered Species Act's citizen-suit provision). There is, however, a large difference between standing questions, involving which parties should be able to raise constitutional issues, and "merits" questions of constitutional law. It is one thing for Congress to tell a court whether to decide an issue, another for Congress to tell a court how to go about deciding a constitutional issue. Cf. Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1373 (1953) (noting that although Congress has power over federal jurisdiction, "if Congress directs an Article III court to decide a case, I can easily read into Article III a limitation on the power of Congress to tell the court how to decide it").
111. This is the result that Professor Paulsen contemplates, as summarized in his subsequent writings: "The judicial policy of stare decisis, to the extent not constitutionally mandated, is hereby abrogated in federal cases as to issues of federal constitutional . . . interpretation." De-precedenting Roe, 3 Green Bag 2d 348 (2000) (providing statutory language proposed by Paulsen). Paulsen also furnishes a more formal version of his proposed statute, which he would propose to codify at 28 U.S.C. § 1652a. See id.
112. See, e.g., James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893) (arguing that courts should not invalidate statutes unless "those who have the right to make laws have not merely made a mistake, but have made a very clear one"). This approach arguably would have some support in the "original understanding." See supra note 35 and accompanying text.
113. See supra notes 63-64 and accompanying text.
114. See supra note 65 and accompanying text.
115. This claim is by no means undermined by practices in the French legal system and in public international law, both of which purport to deny that stare decisis has legally binding effect. Despite their formal positions, both the French legal system and international tribunals have evolved complex practices in which the authority of prior judicial decisions is implicitly, even if not explicitly, acknowledged. See Raj Bhala, The Myth About Stare Decisis and International Trade Law (Part One of a Trilogy), 14 Am. U. Int'l L. Rev. 845, 849-53 (1999) (discussing precedent in international trade law);
116. Mitchel de S.-O.-l'E. Lasser, Judicial (Self-)Portraits: Judicial Discourse in the French Legal System, 104 Yale L.J. 1325, 1350-51, 1391-92 (1995) (discussing French legal system).
117. Fried, supra note 65, at 1156.
118. Id.
119. 410 U.S. 113 (1973).
120. 505 U.S. 833 (1992).
121. Paulsen, supra note 1, at 1596-97.
122. See supra notes 102-05 and accompanying text.
123. 478 U.S. 186 (1986) (finding no constitutionally protected right to engage in private, consensual acts of homosexual sodomy).
124. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (asserting that in order to be protected by substantive due process, rights must be "objectively, 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty'" (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (Powell, J., plurality opinion), and Palko v. Connecticut, 302 U.S. 319, 325 (1937))); Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (Scalia, J., plurality opinion) ("In an attempt to limit and guide interpretation of the [Due Process] Clause, we have insisted not merely that the interest denominated as a 'liberty' be 'fundamental'. . ., but also that it be an interest traditionally protected by our society.").
125. My arguments do not speak directly to the issue in Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000). In Anastasoff, the subsequently vacated panel decision held that a judicially developed rule denying precedential effect to unpublished opinions violated Article III. Unlike a total elimination of stare decisis effect, the special treatment of unpublished opinions does not threaten the overall fabric of constitutional doctrine by putting everything at issue at once. And unlike a denial of precedential effect to opinions addressing particular subjects (or resolving particular issues in a particular way), the rule challenged in Anastasoff was not an attempt to manipulate or alter substantive outcomes and was unlikely to have any systematic effect in doing so. Finally (and relatedly), the rule involved in Anastasoff did not constitute an assault on the traditional, entrenched core of stare decisis - it involved a judicially, rather than congressionally, mandated adjustment at the doctrine's fringes. In light of these considerations, the conclusion that Article III mandates the result reached by the original panel decision in Anastasoff seems to me to be constitutionally doubtful, at best.