Stare decisis and constitutional text

Michigan Law Review

Volumn 110, Issue 1, 2011, Pages 1-68

  Mitchell, Jonathan F ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 80053316862     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (415)

1. Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 749-52 (1988).
2. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992).
3. Thomas W. Merrill, Originalism, Stare Decisis, and the Promotion of Judicial Restraint, 22 Const. Comment. 271 (2005).
4. Richard A. Posner, How Judges Think 145 (2008).
5. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 140 (Amy Gutmann ed., 1997).
6. infra notes 43-47 and accompanying text.
7. Antonin Scalia, supra note 5, at 139 ("The whole function of the doctrine [of stare decisis] is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability.").
8. Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1524 (2010) ("Stare decisis, in other words, privileges tradition over any particular substantive position.").
9. Compare Evan H. Caminker, Why Must Inferior Courts Obey Supreme Court Precedents?, 46 Stan. L. Rev. 817 (1994) (arguing that the Constitution obligates inferior federal courts to follow the Supreme Court's pronouncements),
10. John Harrison Essay, The Power of Congress over the Rules of Precedent, 50 Duke L.J. 503, 513 (2001) (claiming that rules of vertical stare decisis cannot be derived from the Constitution and have the status of federal common law).
11. 545 U.S. 1 (2005).
12. U.S. Const. art. VI, cl. 2.
13. Akhil Reed Amar, The Supreme Court, 2007 Term- Comment: Heller, HLR, and Holistic Legal Reasoning, 122 Harv. L. Rev. 145, 154 (2008) ("[T]he Constitution's text explicitly and unqualifiedly proclaims itself 'the supreme Law of subthe Land'-supreme over any contrary statute, or executive order, or judicial precedent." (footnote omitted)).
14. John Harrison, Judicial Interpretive Finality and the Constitutional Text, 23 Const. Comment. 33, 35 (2006) (noting that Article VI"does not give judicial opinions the interpretive supremacy that it gives to substantive federal law").
15. Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23 (1994) [hereinafter Lawson, The Constitutional Case].
16. Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Ave Maria L. Rev. 1 (2007) [hereinafter Lawson, Mostly Unconstitutional].
17. Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 Const. Comment. 257 (2005).
18. Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Const. Comment. 289 (2005).
19. William S. Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson, and the Consequences of Pragmatic Adjudication, 2002 Utah L. Rev. 53.
20. U.S. Const. art. VI, cl. 2.
21. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 9 (1962) ("[T]he proviso that only those federal statutes are to be supreme which are made in pursuance of the Constitution means that the statutes must carry the outer indicia of validity lent them by enactment in accordance with the constitutional forms.").
22. David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, at 71-73 (1985) (noting that the text of the Supremacy Clause "strongly suggests that the reference to laws made in pursuance of 'this Constitution' was meant to distinguish those made under the Articles of Confederation").
23. Michael J. Klarman, How Great Were the "Great" Marshall Court Decisions?, 87 Va. L. Rev. 1111, 1119 (2001) ("'In Pursuance thereof' means 'after,' not 'consistent with."').
24. William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L.J. 1, 20-21 (observing that "[t]he phrase 'in pursuance thereof' might. easily mean 'in the manner prescribed by this Constitution,"' and concluding that "the only constitutional issue to be raised in a judicial forum to determine whether an act of Congress should be given effect is whether the bill has been enacted according to the forms prescribed in the Constitution").
25. id. at 21 ("It is. significant that the clause does not provide as follows: 'This Constitution, and the Laws of the United States authorized and not limited thereby. shall be the supreme Law of the Land."' (alteration in original)).
26. 5 U.S. (1 Cranch) 137 (1803).
27. 304 U.S. 64 (1938).
28. Charles Alan Wright and Mary Kay Kane note the Supreme Court's application of this court-created common law over state law: It is not accurate to say, however, that the law of the state is to be applied in all cases except on matters governed by the Constitution or Act of Congress. Neither the Constitution nor any statute provides the answer to controversies between states about interstate streams, or similar interstate conflicts, nor do these sources indicate where the governing law is to be found. Yet the Court, of necessity, has developed its own body of law to govern these questions, because of the obvious unsuitability of looking to the law of a particular state when two states are in dispute. Charles Alan Wright & Mary Kay Kane, The Law of Federal Courts 413-14 (6th ed. 2002).
29. Sanford Levinson, Constitutional Faith 27-30 (1988) (distinguishing "protestant" and "catholic" strains in constitutional interpretation, where the former regards constitutional text as the sole source of legal authority, while the latter confers an equally authoritative status on unwritten traditions and the Supreme Court's past interpretive gloss).
30. Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 12, 26 (2002) (noting that Supreme Court justices have "virtually untrammeled policymaking authority" and characterizing the perception of judges as "objective, dispassionate, and impartial" as "The Mythology of Judging").
31. Richard A. Posner, The Supreme Court, 2004 Term-Foreword: A Political Court, 119 Harv. L. Rev. 31, 40 (2005) ("[T]he Supreme Court, when it is deciding constitutional cases, is political in the sense of having and exercising discretionary power as capacious as a legislature's.").
32. Richard A. Posner, supra note 4, at 125-57.
33. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279, 285 (1957) ("[T]he policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.").
34. David A. Strauss, The Living Constitution 99-114 (Geoffrey R. Stone ed., 2010).
35. generally Cass R. Sunstein, A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before (2009). Pragmatic jurists may, of course, subordinate case-specific consequences to systemic and rule-consequentialist concerns.
36. Richard A. Posner, supra note 4, at 238-39 ("[S]ensible legal pragmatism tells the judge to consider systemic, including institutional, consequences as well as consequences of the decision in the case at hand. Sensible pragmatic judges are to be distinguished from shortsighted pragmatists, blinded by the equities of the case to the long-term consequences of their decision[.]").
37. Supra notes 1-4 and accompanying text.
38. Adrian Vermeule, Judging Under Uncertainty 153-82 (2006) (noting that judges suffer from limited information and bounded rationality, which distort their efforts to assess the consequences of their decisions).
39. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 854 (1989) (arguing that the legislature is a "more appropriate expositor of social values" than the judiciary).
40. Akhil Reed Amar, The Supreme Court, 1999 Term-Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 29 (2000) ("What counts as text is the document as prounderstood by the American People who ratified and amended it, and what counts as history is accessible public meaning, not secret private intent.").
41. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (2d ed. 1997).
42. Scalia, supra note 5, at 38.
43. Critics of textualism like to trumpet the Constitution's substantive imperfections, such as its initial toleration of slavery, and question its popular pedigree by noting that most of its provisions were approved hundreds of years ago by people who are long dead and through a process that excluded women and most blacks.
44. David A. Strauss, Essay, Common Law, Common Ground, and Jefferson's Principle, 112 Yale L.J. 1717, 1733-35 (2003). But textualists do not think that these defects-though serious and troubling-can liberate the justices from their obligation to follow the meaning of the ratified text without simultaneously undercutting the document's ability to vest the Supreme Court with any form of legitimate power. No one believes that the Constitution's substance or popular pedigree is perfect, but textualists reject the notion that these imperfections allow one to retain the court-empowering provisions in the ratified Constitution without respecting its court-constraining provisions.
45. I use the term "textualism" rather than "originalism" to describe this approach to constitutional interpretation for two reasons. First, "originalism" can encompass theories that interpret constitutional provisions according to the intentions or specific expectations of the drafters. textualism, by contrast, rejects this type of narrow intentionalism.
46. Frank H. Easterbrook, Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1120 n.4 (1998).
47. Second, textualism is wary of constitutional doctrines, such as the Dormant Commerce Clause, that cannot plausibly be derived from the Constitution's language, even if one could marshal historical evidence demonstrating that the drafters, ratifiers, and general public expected courts to enforce them.
48. Bridenbaugh v. Freeman-Wilson, 227 F.3d 848 (7th Cir. 2000) (Easterbrook, J.). For textualists, the written words of the Constitution have prim acy. original understandings that exist in the air do not control.
49. Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 644 (1999) (characterizing defenses of interpretive formalism as "pragmatic arguments in disguise").
50. Some have tried to answer this challenge by offering ruleconsequentialist defenses of formalistic interpretive methodologies.
51. Vermeule, supra note 23, at 33 (defending interpretive formalism "because that decision-procedure will pro duce the best ground-level consequences for legal institutions, rather than because some higher source of law or higher-level principle mandates it").
52. John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. Rev. 383, 384 (2007) (arguing that adherence to the original meaning of provisions that surmounted the supermajoritarian requirements of Articles V and VII is "likely to have good consequences").
53. Posner, supra note 4, at 240-41 (admitting that "what counts as an acceptably pragmatic resolution of a dispute is relative to the prevailing norms of particular societies" and that legal pragmatism does not even "specify which consequences should be considered").
54. John Rawls, Political Liberalism (expanded ed., 2005).
55. Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 576 (1987) ("[A] pure argument from precedent. depends only on the results of those decisions, and not on the validity of the reasons supporting those results.").
56. U.S. Const. art VI, cl. 2.
57. Lawson, Mostly Unconstitutional, supra note 11, at 6.
58. id. at 20 (arguing that the Constitution prohibits the Supreme Court from relying on precedent except in cases where prior court decisions supply "good evidence of the right answer").
59. Barnett, supra note 11, at 269 ("Where a determinate original meaning can be ascertained and is inconsistent with previous judicial decisions, these precedents should be reversed and the original meaning adopted in their place.").
60. Steven G. Calabresi, Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania v. Casey, 22 Const. Comment. 311, 312-13 (2005) ("[T]he Supreme Court ought to follow the text of the Constitution, as originally understood, rather than its own precedents, where there is clear conflict between the two.").
61. Paulsen, supra note 11, at 291 ("Stare decisis is unconstitutional, precisely to the extent that it yields deviations from the correct interpretation of the Constitution! It would have judges apply, in preference to the Constitution, that which is not consistent with the Constitution.").
62. Consovoy, supra note 11, at 104, 106 ("The Court should abandon stare decisis in constitutional cases. Pragmatism has no place in the Supreme Court and its application in the realm of stare decisis is unwarranted and unacceptable.").
63. Monaghan, supra note 1, at 727 ("[M]uch of the existing constitutional order is at variance with what we know of the original understanding.").
64. Kenneth W. Dam, The Legal Tender Cases, 1981 Sup. Ct. Rev. 367, 389 ("[A]lthough it may have been inconvenient to the proponents and constitutional defenders of legal tender paper money, it is difficult to escape the conclusion that the Framers intended to prohibit its use.").
65. Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387 (1987).
66. United States v. Lopez, 514 U.S. 549, 584-602 (Thomas, J., concurring).
67. Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001).
68. David A. Strauss, Originalism, Precedent, and Candor, 22 Const. Comment. 299, 305 (2005) (noting that the Brown Court "essentially conceded that the original understanding of the Fourteenth Amendment did not support the conclusion it reached in Brown" and that "the best lawyers and best historians of the time could not identify an originalist argument for Brown that was plausible enough to be used even by a Court with every incentive to use such an argument").
69. Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 Cornell L. Rev. 422, 430-33 (1988).
70. Id. at 432.
71. Scalia, supra note 5, at 139 ("The whole function of [stare decisis] is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability. It is a compromise of all philosophies of interpretation.").
72. Scalia, supra note 23, at 861-62 (conceding that "almost every originalist would adulterate originalism with the doctrine of stare decisis," because "most originalists are fainthearted").
73. Robert H. Bork, The Tempting of America: The Political Seduction of the Law 158 (1990).
74. Bork argues that the justices should adhere to previous rulings, even if "clearly incorrect," when they "have become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court." Id.
75. Amar, supra note 24, at 28 ("[P]ure textualism can risk serious instability if not chastened by attention to the legal status quo. Thus, even the best documentarian reading must sometimes yield in court to brute facts born of earlier judicial and political deviations.").
76. 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
77. 426 U.S. 8 33 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469U.S. 528 (1985).
78. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-55 (1992).
79. Gonzales v. Raich, 545 U.S. 1, 17-22 (2005).
80. Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), overruling Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990).
81. Citizens United v. FEC, 130 S. Ct. 876 (2010), overruling Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990).
82. 134 U.S. 1 (1890).
83. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV, generated strong reliance interests for slaveholders, but no one thinks (and no one should think) that those reliance interests ought to compel the post-Dred Scott Supreme Court to extend stare decisis to that ruling.
84. Segal and Spaeth, supra note 18, at 81 ("[P]recedent. provides virtually no guide to the justices' decisions. All that one can say is that precedent is a matter of good form, rather than a limit on the operation of judicial policy preferences.").
85. id. at 288-311 (presenting empirical data to support this view of precedent).
86. In the words of Chief Justice Roberts, stare decisis requires the Court to "balance the importance of having constitutional questions decided against the importance of having them decided right."
87. See Citizens United, 130 S. Ct. at 920 (Roberts, C.J., concurring). This balancing test provides no guidance to justices who must weigh these competing concerns.
88. Furman v. Georgia, 408 U.S. 238, 257-306 (1972) (Brennan, J., concurring).
89. Mapp v. Ohio, 367 U.S. 643 (1961).
90. Roe v. Wade, 410 U.S. 113 (1973).
91. Lawrence v. Texas, 539 U.S. 558 (2003).
92. Strauss, supra note 20, at 17 (arguing that rigorous originalism produces results that are "inconsistent with principles that are at the core of American constitutional law," and that "fainthearted" originalism that accommodates stare decisis removes constraints on judicial discretion and allows judges to become "sometime-living-constitutionalists").
93. Cass R. Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America 53-78 (2005) (arguing that original-meaning textualism is "radical" and "indefensible" unless tempered by stare decisis, and that "faint-hearted" textualists who accommodate stare decisis "cannot easily show that their approach promotes their goal of binding judges through clear rules").
94. Mark Tushnet, Taking the Constitution Away from the Courts 156-57 (1999) (criticizing "conservative originalists" for opportunistically invoking stare decisis to preserve nonoriginalist rulings such as Brown v. Board of Education, while refusing to accede to other nonoriginalist rulings, such as Roe v. Wade).
95. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (equating the majority opinions that accompany the Supreme Court's resolution of constitutional cases with the "supreme Law of the Land" described in Article VI). Charles Evans Hughes, Addresses of Charles Evans Hughes, 1906-1916, 185 (2d ed. 1916) ("We are under a Constitution, but the Constitution is what the judges say it is.").
96. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1361 (1997) (arguing that nonjudicial officials should respect the Supreme Court's constitutional pronouncements as a binding interpretive gloss on the document, even in the case of "judicial interpretations [of constitutional provisions] they believe wrong").
97. David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113, 135 (1993) ("Of course there is a difference between constitutional law and the Constitution, and there are times when the former should be changed to make it more consistent with the latter.").
98. One might analogize the relationship between the Constitution and Supreme Court precedent to the relationship between statutes and agency regulations. Agency regulations are regarded as binding interpretations of statutes, but they are not themselves statutes. An agency can unilaterally revoke its regulations, but it can never amend a statute outside of Article I, Section 7's bicameralism-and-presentment procedures.
99. Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-92 (1939) (Frankfurter, J., concurring) ("[T]he ultimate touchstone of constitutionality is the Constitution itself and not what we [justices] have said about it.").
100. William Baude, The Judgment Power, 96 Geo. L.J. 1807 (2008).
101. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring) ("It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.").
102. John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 Va. L. Rev. 333, 358 (1998) (arguing that judges start with interpretive authority over the Constitution unless and until they "encounter a finality rule" instructing them to accept someone else's interpretation).
103. Amar, supra note 24, at 80.
104. Caminker, supra note 8.
105. Baker v. Carr, 369 U.S. 186, 217 (1962). For example, when the Constitution gives the Senate "the sole [p]ower to try all [i]mpeachments," U.S. Const. art I, § 3, cl. 6 (emphasis added), this language indicates that the Senate, rather than the Supreme Court, will have the final say on the trial procedures that it will use. See Nixon v. United States, 506 U.S. 224, 238 (1993).
106. Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004) (plurality opinion) ("Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc. law pronouncedby the courts must be principled, rational, and based upon reasoned distinctions.").
107. Harrison, supra note 8, at 513 (demonstrating the impossibility of deriving the federal courts' stare decisis doctrines from constitutional text).
108. See infra notes 103-123 and accompanying text.
109. Harrison, supra note 10, at 35 (noting that Article VI"does not give judicial opinions the interpretive supremacy that it gives to substantive federal law").
110. Some commentators argue that Article V requires the Supreme Court to exercise judicial review because enforcing unconstitutional statutes would produce de facto constitutional amendments.
111. Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887, 918 (2003) ("Without judicial review (or executive or legislative review, for that matter), the federal government would be able to circumvent Article V. This would allow the government to effectively amend the Constitution without undergoing Article V's difficult supermajoritarian process.").
112. This overlooks Congress's ability to repeal an unconstitutional statute through the normal bicameralism-and-presentment processes, which distinguishes a mistaken congressional interpretation from a de facto constitutional amendment.
113. U.S. Const. art. III, § 1.
114. Bork, supra note 46, at 157 ("[A]rticle III vests the 'judicial Power' in the Supreme Court and lower federal courts. At the time of the ratification, judicial power was known to be to some degree confined by an obligation to respect precedent." (footnote omitted)).
115. Amar, supra note 10, at 157 (arguing that Article III's Vesting Clause "envision[s] a system in which Article III tribunals will sit in judgment over events that have already occurred and will decide these cases, not by creating new rules, but by declaring the preexisting federal law that applied when the relevant litigation-creating events happened").
116. John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 Nw. U. L. Rev. 803, 823-825 (2009) (arguing that Article III's Vesting Clause requires the justices to give some weight to precedent).
117. William Blackstone, Commentaries 91 (Clarendon Press 1765) ("[I]f the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.").
118. id. at 156 ("[Parliament is] the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms.").
119. 77 Eng. Rep. 646, 8 Co. Rep. 114a (C.P. 1610).
120. Id. at 652.
121. 8 Co. Rep. at 118a ("[I]n many cases, the common law will. controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.").
122. Scholars debate whether Coke's views accurately reflected English common-law practices, but Coke undoubtedly influenced American constitutional thought.
123. Joyce Lee Malcolm, Whatever the Judges Say It Is? The Founders and Judicial Review, 26 J.L. & Pol. 1, 13-15 (2010) (discussing Coke's influence on the founders).
124. The Declaration of Independence paras. 10-11 (U.S. 1776).
125. Harrison, supra note 10, at 43-45.
126. William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455, 476, 478, 519-520 (2005) (describing revolutionary-era state-court cases that were published only in newspapers accounts).
127. Ruth Bader Ginsburg, Lecture, The Role of Dissenting Opinions, 95 Minn. L. Rev. 1, 2-3 (2010).
128. Frederick Schauer, Precedent and the Necessary Externality of Constitutional Norms, 17 Harv. J.L. & Pub. Pol'y 45 (1994).
129. Id. at 49.
130. see also id. ("[I]t is hard to see that anything in the Constitution permits case-by-case persuasion by prior judicial actions but prohibits less case-specific persuasion by prior judicial actions. This, of course, is just what stare decisis is-the imposed assumption, without retail inspection, that decisions from some source are likely to be followed because of ex ante presuppositions about their likely content, such as the presupposition that earlier cases were likely to have been decided correctly.").
131. Cass R. Sunstein & Edna Ullman-Margalit, Second-Order Decisions, 110 Ethics 5, 7 (1999) (discussing and clarifying the choices among "second-order decisions," the "decisions about the appropriate strategy for reducing the problems associated with making a first-order decision").
132. Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 53 (2001).
133. See infra Part III.
134. Vermeule, supra note 23.
135. Adam M. Samaha, On Law's Tiebreakers, 76 U. Chi. L. Rev. 1661 (2010).
136. Sunstein, supra note 29, at 647.
137. Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 20-31 (1997).
138. Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 Harv. J.L. & Pub. Pol'y 103, 110 (2000) ("[I]t is clear-a word that can rarely be used in this field of law-that the Equal Protection Clause was not originally understood by its framers to encompass voting rights.").
139. Philip Hamburger, Separation of Church and State 481 (2002) ("[T]he constitutional authority for separation [of church and state] is without historical foundation.").
140. Nelson, supra note 89, at 5.
141. 317 U.S. 111 (1942).
142. Epstein, supra note 39, at 1451 ("Could anyone say with a straight face that the consumption of homegrown wheat is 'commerce among the several states?"').
143. United States v. Lopez, 514 U.S. 549, 584-602 (1995) (Thomas, J., concurring).
144. Barnett, supra note 41, at 101-102.
145. Richard A. Epstein, Propter Honoris Respectum, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167, 170 (1996).
146. 545 U.S. 1 (2005).
147. Lawson, Mostly Unconstitutional, supra note 11, at 6.
148. During Pennsylvania's ratification convention, for example, Robert Whitehill argued that federal statutes could be made "in pursuance" of the Constitution so long as they survived the bicameralism-and-presentment processes.
149. See 2 The Documentary History of the Ratification of the Constitution: Pennsylvania 513 (Merrill Jensen ed., 1976) [hereinafter Documentary History Volume 2]. James Wilson, by contrast, disagreed with this construction of the Supremacy Clause and insisted that federal courts would nullify unconstitutional congressional enactments.
150. Id. at 517.
151. 5 U.S. (1 Cranch) 137, 180 (1803).
152. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819) (construing "in pursuance thereof" to require compliance with Constitution's substantive restrictions on federal power).
153. Reid v. Covert, 354 U.S. 1, 16-17 (1957) (plurality opinion) ("[T]he reason treaties were not limited to those made in 'pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect."). The Reid plurality opinion went on to insist that treaties, like statutes, must comport with the Supreme Court's interpretation of the Constitution.
154. Id. at 17.
155. Currie, supra note 13, at 72-73 (noting that the Supremacy Clause "embraces treaties made both before and after adoption of the Constitution" and that "the contrast strongly suggests that the reference to laws made in pursuance of 'this Constitution' was meant to distinguish those made under the Articles of Confederation" (footnotes omitted)).
156. Klarman, supra note 13, at 1119 ("[T]he Framers probably intended 'in Pursuance thereof' to signify a temporal rather than a logical connection.").
157. Article I, Section 7 establishes three processes by which a bill becomes law. The first is approval by each house of Congress followed by the president's signature. the Constitution requires presentment to the president "before it become a Law." U.S. Const. art. I, § 7, cl. 2. The second is a two-thirds vote in each house to override a presidential veto. after this happens, it "shall become a Law."
158. The third involves approval by each house and the president allows it to become law without his signature. when this occurs, it "shall be a Law."
159. Philip Hamburger, Law and Judicial Duty 596 (2008) (acknowledging that the text of the Supremacy Clause does not "stipulate the relative supremacy of the Constitution over federal statutes and treaties" yet insisting that the Constitution's supremacy over federal statutes "could be taken for granted").
160. Marbury, 5 U.S. (1 Cranch) at 177.
161. Many commentators have criticized this question-begging fallacy in the Marbury opinion.
162. Bickel, supra note 13, at 2-3.
163. Currie, supra note 13, at 71 n.49.
164. Vermeule, supra note 23, at 234.
165. Harrison, supra note 69, at 334.
166. Van Alstyne, supra note 13, at 21.
167. Perhaps Marshall's rejection of congressional supremacy is rooted in an intuition that foxes should not guard henhouses, but the president's veto already protects against congressional self-aggrandizement, and in all events Marbury-style judicial supremacy presents the reciprocal danger of empowering the justices to expand their own constitutional powers at the expense of the other branches.
168. Eakin v. Raub, 12 Serg. & Rawle 330, 355 (Pa. 1825) (Gibson, J., dissenting) (rejecting judicial review and insisting that "it rests with the people, in whom full and absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act"). Kamper v. Hawkins, 3 Va. (1 Va. Cas.) 20, 77 (1793) (opinion of Tucker, J.) ("[T]he constitution of a state is a rule to the Legislature only.").
169. Larry D. Kramer, The Supreme Court, 2000 Term-Foreword: We The Court, 115 Harv. L. Rev. 5, 48-49 (2001) (arguing that ultimate interpretive authority over the Constitution rests with the people, who can check unconstitutional legislation by removing their elected representatives).
170. The Federalist No. 33, at 175 (Alexander Hamilton) (ABA 2009) ("[I]t will not follow from [the Supremacy Clause] that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation.").
171. Id. ("If the federal government should overpass the just bounds of its authority. the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.").
172. Brutus XV (1788), reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates 304, 307 (Ralph Ketcham ed., Mentor 1986) (arguing that the Constitution had authorized the justices to nullify legislation based "not only according to the natural and ob[vious] meaning of the [Constitution's] words, but also according to the spirit and intention of it").
173. Kramer, supra note 111, at 67-68 (explaining how Brutus's essay provided the context for Federalist No. 78).
174. Shlomo Slonim, Federalist No. 78 and Brutus' Neglected Thesis on Judicial Supremacy, 23 Const. Comment. 7 (2006) (same).
175. The Federalist No. 49, at 285 (James Madison) (ABA 2009) ("The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.").
176. Treanor, supra note 84, at 455 (collecting authorities).
177. Bickel, supra note 13, at 7.
178. This early judicial practice mirrors the modern presidents' selective use of their nonenforcement prerogatives, where they (generally) enforce and defend all federal statutes unless they infringe the constitutional powers of the executive branch.
179. 1 Joseph Story, Commentaries on the Constitution of the United States: with a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution § 383 (Melville M. Bigelow ed., Little, Brown, & Co. 5th ed. 1905) (1833) (asserting that the federal judiciary's interpretation of the Constitution "becomes obligatory and conclusive upon all the departments of the Federal government, and upon the whole people, so far as their rights and duties are derived from, or affected by that Constitution").
180. Id. § 374 (arguing that the scope of these powers involves "measures exclusively of a political, legislative, or executive character," and insisting that "the supreme authority, as to these questions, belongs to the legislative and executive departments, they cannot be reexamined elsewhere").
181. id. ("[T]hese powers can never become the subject of re-examination in any other tribunal.").
182. Article V, of course, indicates that Congress cannot amend the Constitution with simple lawmaking, and some have suggested that this provision counsels in favor of broad, Marbury-style judicial review.
183. Harrison, supra note 69, at 347-348.
184. But a Supreme Court ruling that sustains an unconstitutional federal statute will not establish a de facto constitutional amendment because Congress always retains the prerogative to repeal that statute through the ordinary bicameralism-and-presentment processes. Attributing finality to a federal statute's interpretation of a constitutional provision is no more constitutionally objectionable than the political branches' longstanding practice of respecting the finality of federal-court judgments, even when they believe them to rest on mistaken interpretations of the Constitution.
185. Adrian Vermeule, Judicial Review and Institutional Choice, 43 Wm. & Mary L. Rev. 1557, 1561 (2002) (noting the view that judicial review does not invalidate federal statutes, but merely delays their effectiveness "until the process of presidential appointment aligns the Court's holdings with the nation's wishes").
186. Letter from Justice Marshall to Justice Paterson (Apr. 6, 1802), in 6 The Papers of John Marshall 105, 106 (Charles F. Hobson ed., 1990) (questioning the constitutionality of the repealing statute). Letter from Justice Marshall to Judge William Cushing (Apr. 19, 1802), in 6 The Papers of John Marshall, supra, at 108, 108 (expressing "more than doubt" regarding the constitutionality of the repealing statute).
187. Letter from Justice Chase to Justice Marshall (Apr. 24, 1802), in 6 The Papers of John Marshall, supra, at 109, 109-16 (opining that the repealing statute was unconstitutional).
188. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 136-137 (1893) ("As the opportunity of the judges to check and correct unconstitutional Acts is so limited, it may help us to understand why the extent of their control, when they do have the opportunity, should also be narrow.").
189. For a different view of the pervasiveness and value of preventive adjudication, see Samuel L. Bray, Preventive Adjudication, 77 U. Chi. L. Rev. 1275 (2010).
190. The Federalist No. 78, at 451 (Alexander Hamilton) (ABA 2009) ("If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution."). Harrison, supra note 69, at 333 (defending judicial review after concluding that no constitutional provision compels courts or the executive to treat all federal statutes as authoritative constructions of the Constitution).
191. Documentary History Volume 2, supra note 103, at 517 (recording James Wilson's remarks at the Pennsylvania ratifying convention, which insisted that the courts would "declare. void" any congressional enactment that exceeded the federal government's powers). 10 The Documentary History of the Ratification of the Constitution: Virginia 1431 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (recording John Marshall's statement at the Virginia ratifying convention predicting that courts would "declare. void" an unconstitutional federal statute). When the members of the First Congress debated the "Decision of 1789" regarding the scope of the president's removal power, as well as the 1789 Judiciary Act, they assumed that the courts would independently assess the constitutionality of their legislation. 1 The Records of the Federal Convention of 1787, at 97 (Max Farrand ed., rev. ed. 1937) (noting that Elbridge Gerry opposed the proposed Council of Revision in the Virginia Plan, on the ground that federal judges "will have a sufficient check agst. encroachments on their own department by their exposition of the laws,
192. which involved a power of deciding on their Constitutionality").
193. David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801, at 120 (1997) ("Repeatedly and without contradiction, members of the First Congress acknowledged that the constitutionality of their actions would be subject to judicial review.").
194. At least two delegates to the Philadelphia convention disapproved the notion of judicial review. See 2 The Records of the Federal Convention of 1787, supra, at 298 (noting Francis Mercer's disapproval of "the Doctrine that the Judges as expositors of the Constitution should have authority to declare a law void").
195. id. at 299 (noting that John Dickenson "thought no such power [of judicial review] ought to exist"). These disagreements, as well as the controversies surrounding state courts that deployed judicial review prior to the Constitution, may explain why the written Constitution never explicitly endorses or repudiates judicial review of congressional enactments, leaving the matter largely to inference. Cf. U.S. Const. art. VI (explicitly requiring courts to subordinate state law to the Constitution).
196. Some departmentalists insist that the president's Oath of Office forbids him to defer to the constitutional interpretations adopted by Congress or the Supreme Court and obligates a president to interpret the Constitution de novo when deciding whether to enforce a federal statute.
197. Gary Lawson, Everything I Need to Know About Presidents I Learned from Dr. Seuss, 24 Harv. J.L. & Pub. Pol'y 381 (2001).
198. But nothing in the president's Oath of Office compels the president to exercise independent interpretive authority over the Constitution. Like the Constitution itself, the Oath is silent on how to allocate final interpretive authority over the Constitution among the three branches of the federal government. Many different approaches can be squared with the constitutional text and with the Oath.
199. Kramer, supra note 111, at 13 ("Nothing in the doctrine of judicial supremacy. [denies] legitimate interpretive authority on political actors as a means of ensuring continued popular input in shaping constitutional meaning. The trick, of course, is to find the proper balance, a problem courts have struggled with throughout American history.").
200. Lawrence v. Texas, 539 U.S. 558 (2003).
201. Compare Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 392-405 (1821) (holding that Congress may confer appellate jurisdiction on the Supreme Court even in cases where Article III, § 2 provides for original jurisdiction in the Supreme Court), with Marbury, 5 U.S. (1 Cranch) at 174 (holding that Article III forbids Congress either to give the Supreme Court original jurisdiction where the Constitution provides for appellate, or to give it appellate jurisdiction where the Constitution provides for original).
202. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-102 (1998) (forbidding Article III courts to resolve disputed questions of law when subject-matter jurisdiction is in doubt), with Marbury, 5 U.S. (1 Cranch) at 154-68 (reaching the merits of the dispute and holding that the Jefferson Administration unlawfully withheld Marbury's commission, and only later resolving whether the Supreme Court could exercise jurisdiction over the controversy).
203. Compare United States v. Morrison, 529 U.S. 598, 628-55 (2000) (Souter, J., dissenting), and Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 530-57 (1985), with Morrison, 529 U.S. at 610-27 (majority opinion), and Garcia, 469 U.S. at 580-89 (O'Connor, J., dissenting). In his Morrison majority opinion, Chief Justice Rehnquist accused his dissenting colleagues of retreating from Marbury by embracing the "political safeguards of federalism" theory. Rehnquist was right to characterize the "political safeguards" rationale as a retreat from Marbury, but he was wrong to suggest that there was anything lawless about that. Stare decisis likewise represents a retreat from Marbury when invoked to uphold an unconstitutional federal statute. Each of these practices is lawful because the justices need only obey the written Constitution, not the Supreme Court's earlier pronouncements, and the document does not obligate the justices to nullify unconstitutional federal statutes.
204. Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 Duke L.J. 1277, 1283-1285 (2001) (documenting the categories of constitutional interpretive questions that are vested in political branches rather than courts).
205. Mitchell v. Laird, 488 F.2d 611, 616 (D.C. Cir. 1973). Campbell v. Clinton, 203 F.3d 19, 24-28 (D.C. Cir. 2000) (Silberman, J., concurring).
206. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 147-51 (1912).
207. Frank H. Easterbrook, Abstraction and Authority, 59 U. Chi. L. Rev. 349, 373 (1992) ("The need to persuade society to obey sets bounds on judicial creativity.").
208. U.S. Const. art. III.
209. 28 U.S.C. § 453 (requiring federal judges to swear or affirm that they will administer justice "without respect to persons, and do equal right to the poor and to the rich").
210. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).
211. 134 U.S. 1 (1890).
212. U.S. Const. amend. XI (emphasis added).
213. John F. Manning, The Eleventh Amendment and Precise Constitutional Texts, 113 Yale L.J. 1663, 1680-1681 (2004).
214. Even Hans's academic defenders acknowledge this point.
215. David P. Currie, The Constitution in the Supreme Court: The Second Century 1888-1986, at 7-9 (1990).
216. For criticism of Hans, see Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1476 (1987).
217. Harrison, supra note 10.
218. 163 U.S. 537 (1896).
219. 347 U.S. 483 (1954).
220. Brief for Appellees on Reargument at 59-60, Briggs v. Elliott, 347 U.S. 483 (1954).
221. See supra Section II.B.1.
222. U.S. Const. art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof. and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. and the Judges in every State shall be bound thereby.") (emphasis added).
223. 198 U.S. 45 (1905).
224. Not quite everyone deems Lochner wrongly decided.
225. See, e.g., Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 128-29 (1985).
226. Bernard H. Siegan, Economic Liberties and the Constitution 113-25, 320-21 (1980). Those who approve of Lochner can substitute a case from their own lists of worst Supreme Court rulings invalidating a state law.
227. See supra Section II.B.2.
228. 3 U.S. (3 Dall.) 386 (1798).
229. Id. at 388 (opinion of Chase, J.) (emphasis omitted).
230. Id. (emphasis omitted).
231. 304 U.S. 64 (1938).
232. Id. at 78 ("Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.").
233. U.S. Const. amend. X.
234. See, e.g., Levinson v. Deupree, 345 U.S. 648, 651-52 (1953).
235. See, e.g., Connecticut v. Massachusetts, 282 U.S. 660, 670-71 (1931).
236. Wright & Kane, supra note 16, at 413-14.
237. Professor Clark argues that the Supremacy Clause allows only the "Constitution," the "Laws of the United States," and "Treaties" to displace state laws.
238. See Bradford R. Clark, Erie's Constitutional Source, 95 Calif. L. Rev. 1289, 1289-90 (2007). That is not, however, what the Supremacy Clause says. It designates three categories of "supreme" federal law, and it commands state law to yield to those laws. This does not preserve any status for state law vis-à-vis the other sources of nonsupreme law. Of course, the Constitution still permits the justices to elevate state law above all other sources of nonsupreme laws, and Professor Clark's approach has great appeal to those who value federalism and distrust judicial discretion. But this is a prudential issue of policy, not a constitutional command. Other policy concerns, such as the need to promote stability and reliance interests, might be invoked to justify a different approach in other cases.
239. See supra note 154 and accompanying text.
240. See 19 Charles Alan Wright et al., Federal Practice and Procedure § 4505, at 50-54 (2d ed. 1996) (criticizing Erie's constitutional analysis as "remarkably abbreviated" and "puzzling"). Other commentators have criticized the Erie opinion's tendentious analysis of the legislative history of the Rules of Decision Act.
241. See, e.g., Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 903-04 (1986).
242. William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1514-15 (1984).
243. Henry J. Friendly, In Praise of Erie-And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383, 388-89 (1964).
244. 41 U.S. (16 Pet.) 1 (1842).
245. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal
246. Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 819 & n.20
247. (1997) (noting that Article VI designates "treaties" as the supreme law of the land but omits any reference to customary international law).
248. See, e.g., Philip C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int'l L. 740, 743 (1939) ("It would be as unsound as it would be unwise to make our state courts our ultimate authority for pronouncing the rules of international law.").
249. Ernest A. Young, Sorting Out the Debate Over Customary International Law, 42 Va. J. Int'l L. 365, 461 (2002) (noting that divergent state interpretations of the doctrines of consular immunity and head-of-state immunity would "obviously have the potential to complicate American foreign relations and undermine the ability of the federal Executive to conduct foreign policy").
250. See The Paquete Habana, 175 U.S. 677, 700 (1900) (holding that customary international law is "part of our law," which federal courts should apply as a rule of decision "where there is no treaty, and no controlling executive or legislative act or judicial decision" on point).
251. The latter result logically follows from the widely held "modern" (and post-Erie) position that equates customary international law with "supreme" federal law.
252. See Bradley & Goldsmith, supra note 162, at 818.
253. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 73-78 (1938).
254. See id. at 74-75. Under the Swift v. Tyson regime, litigants sued in state court were judged by state common law, while those sued in federal diversity courts were subject to the ederal general common law. This gave noncitizens significant forum-shopping advantages ver in-state litigants, because 28 U.S.C. § 1444(b) blocks in-state defendants from removing iversity cases to federal court.
255. See, e.g., Bradley & Goldsmith, supra note 162, at 852-53 (arguing that "all law pplied by federal courts must be either federal law or state law" and that a "federal court can o longer apply [customary international law] in the absence of some domestic authorization o do so").
256. See generally Lawson, The Constitutional Case, supra note 11 (assuming that the onstitution obligates the Supreme Court to enforce state laws if they comport with the Constitution nd "supreme" federal law).
257. See Erie, 304 U.S. at 73-78.
258. See 17 U.S. (4 Wheat.) 316 (1819) (invalidating a state tax on the operations of the ank of the United States, even though no provision in the Constitution or in any federal statute xplicitly precluded states from taxing the bank).
259. See 3 U.S. (3 Dall.) 386, 386-95 (1798) (opinion of Chase, J.).
260. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
261. See 41 U.S. (16 Pet.) 1 (1842).
262. See Lochner v. New York, 198 U.S. 45 (1905).
263. See United States v. Pink, 315 U.S. 203 (1942).
264. United States v. Belmont, 301 U.S. 24 (1937).
265. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966).
266. arrington v. Rash, 80 U.S. 89 (1965).]
267. eynolds v. Sims, 377 U.S. 533 (1964).
268. See, e.g., Zschernig v. Miller, 389 U.S. 429, 432 (1968) (invalidating an Oregon robate statute solely because the Court deemed it "an intrusion by the State into the field of oreign affairs," which the Court thought should be "entrust[ed] to the President and the Congress" citation omitted)).
269. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 420 (2003) (holding hat federal courts may invalidate state legislation that "will produce something more than ncidental effect in conflict with express foreign policy of the National Government").
270. See generally Swift, 41 U.S. (16 Pet.) at 1.
271. See Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 03, 709 (1975).
272. See generally Charles L. Black, Jr., Inference from Structure: The Neglected method, in Structure and Relationship in Constitutional Law 3 (1969).
273. See The Paquete Habana, 175 U.S. 677 (1900).
274. See generally Zschernig, 389 U.S. 429.
275. See Lochner v. New York, 198 U.S. 45 (1905).
276. See Henry P. Monaghan, The Supreme Court, 1974 Term-Foreword: Constitutional common Law, 89 Harv. L. Rev. 1 (1975).
277. S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).
278. It is also important to avoid the "perfect Constitution" fallacy, which assumes that he Constitution must prohibit undesirable conduct while overlooking other mechanisms that an prevent the abuses.
279. See, e.g., Herrera v. Collins, 506 U.S. 390, 428 (1993) (Scalia, J., concurring) rejecting "actual innocence" as a judicially enforceable constitutional claim because it is improbable that evidence of innocence as convincing as today's opinion requires would ail to produce an executive pardon").
280. 347 U.S. 483 (1954).
281. See Michael J. Klarman, Brown, Originalism, and Constitutional Theory, 81 Va. L. ev. 1881, 1893 (1995).
282. Strauss, supra note 42, at 304-06.
283. See Michael W. McConnell, The Originalist Case for Brown v. Board of Education, 19 Harv. J.L. & Pub. Pol'y 457 (1996).
284. This could be done either by arguing that the meaning of the Equal Protection Clause changed, or else by arguing that the Equal Protection Clause implicitly delegated power to future Supreme Courts to impose new visions of equality on the states.
285. See Bork, supra note 46, at 82-83.
286. E.g., Vermeule, supra note 23, at 280.
287. 350 U.S. 985 (1956).
288. See Sunstein, supra note 21, at 140-64 (discussing Naim).
289. Bolling v. Sharpe, 347 U.S. 497 (1954), is in a different category, because general common law cannot trump an act of Congress.
290. See infra notes 246-247 and accompanying text.
291. 388 U.S. 1 (1967) (invalidating state anti-miscegenation laws).
292. 377 U.S. 533 (1964) (invalidating malapportioned districts in state legislatures).
293. 381 U.S. 479 (1965) (invalidating a state law restricting use of contraceptives by married couples).
294. 372 U.S. 335 (1963) (expanding the right to appointed counsel in state criminal proceedings).
295. E.g., Taylor v. Louisiana, 419 U.S. 522 (1975) (invalidating a state law excluding women from jury service).
296. E.g., Texas v. Johnson, 491 U.S. 397 (1989) (invalidating a state law restricting flag burning).
297. See supra note 187 and accompanying text.
298. See supra notes 135-136 and accompanying text.
299. See David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996).
300. Thomas W. Merrill, Bork v. Burke, 19 Harv. J.L. & Pub. Pol'y 509 (1996).
301. Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619 (1994).
302. See generally Adrian Vermeule, Law and the Limits of Reason 92 (2009) (noting that under the theories of common-law constitutionalism, it is "not at all obvious why judges should rely on precedent or tradition to trump the views of current legislatures").
303. See infra notes 216-229 and accompanying text.
304. See 28 U.S.C. § 1367 (2006) (extending the federal courts' supplemental jurisdiction
305. to the maximum extent authorized by Article III).
306. United Mine Workers v. Gibbs, 383
307. U.S. 715, 725 (1966) (holding that Article III extends the federal courts' supplemental jurisdiction to all claims involving the same "common nucleus of operative fact").
308. see also 28 U.S.C. § 1257 (2006) (authorizing the Supreme Court to review an entire state-court "judgment[] or decree[]" whenever a litigant presents a federal-law claim).
309. Jonathan F. Mitchell, Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance, 77 U. Chi. L. Rev. 1335, 1342-45 (2010) (noting that the text of 28 U.S.C. § 1257 permits the Supreme Court to review all issues decided in a final state supreme court ruling so long as the "judgment[] or decree[]" presents at least one federal-law claim).
310. 28 U.S.C. § 2254(a) (2006).
311. 428 U.S. 465 (1976) (requiring federal habeas courts to reject exclusionary-rule claims so long as the state courts provided an "opportunity for full and fair litigation" of the claim, even if the state courts decided the claim incorrectly).
312. See, e.g., Withrow v. Williams, 507 U.S. 680, 700 (O'Connor, J., dissenting) (arguing that Stone should be extended to "bar claims on habeas that allege[] violations of the prophylactic rule of Miranda v. Arizona").
313. see also Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963) (arguing that the rule in Stone should apply to all constitutional claims brought by convicted state prisoners).
314. See, e.g., Lewellen v. Metro. Gov't, 34 F.3d 345, 347 (6th Cir. 1994) ("Unless a deprivation of some federal constitutional or statutory right has occurred, § 1983 provides no redress even if the plaintiff's common law rights have been violated and even if the remedies available under state law are inadequate.").
315. See Cass R. Sunstein, Section 1983 and the Private Enforcement of Federal Law, 49 U. Chi. L. Rev. 394, 412 (1982) (noting that early twentieth-century federal courts freely created private rights of actions by "exercising the common law powers recognized in Swift v. Tyson," and that federal courts continued this practice post-Erie).
316. See Strauss, supra note 204, at 893-94.
317. Merrill, supra note 204, at 515-23.
318. Young, supra note 204, at 686-715.
319. See supra note 187 and accompanying text.
320. Professor Harrison has argued that the Supreme Court's norms of stare decisis (rather than the precedents themselves) qualify as general common law, and suggests that Congress may therefore legislate rules of constitutional stare decisis that differ from those deployed by the Supreme Court.
321. See John Harrison, The Power of Congress Over the Rules of Precedent, 50 Duke L.J. 503, 531-43 (2001). But Congress cannot legislate a regime of stare decisis that inverts the hierarchy of laws established in Article VI. A statute commanding the Supreme Court to give binding precedential weight to Plessy or Seminole Tribe (or any other precedent that nullifies a federal statute or upholds a state law against constitutional challenge) will violate the Supremacy Clause if those precedents represent erroneous constitutional pronouncements. Once the Court's stare decisis practices are derived from the text of the Supremacy Clause, Congress has only a limited power to legislate the priority that should be given to wrongly decided constitutional precedents.
322. 28 U.S.C. § 1652 (2006).
323. See, e.g., Martin H. Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process: An "Institutionalist" Perspective, 83 Nw. U. L. Rev. 761, 799 (1989).
324. See id. at 790-94.
325. See, e.g., Wilfred J. Ritz, Rewriting the History of the Judiciary Act of 1789, at 86 (1990) ("In the Judiciary Act the words 'respective' or 'respectively' are used to individualize or particularize the reference, whereas 'several' is used to refer to a collection of individuals or entities as a group.").
326. id. at 140 ("The phrase, 'the laws of the several states,' in [the RDA] does not mean that the national courts are to apply the law of a particular state .If this meaning had been intended, the word used almost certainly would have been 'respective' and not 'several.' ").
327. Suzanna Sherry, Wrong, Out of Step, and Pernicious: Erie as the Worst Decision of All Time, 39 Pepp. L. Rev. (forthcoming 2012) ("[T]he instruction in [the RDA] to apply 'the laws of the several states' directed courts not to the law of any individual state, but rather to the law of all states-in other words, to federally developed common law. The purpose was to ensure that American law, not British law, would apply in the federal courts.").
328. Field, supra note 160.
329. see also Cent. Pines Land Co. v. United States, 274 F.3d 881, 887 (5th Cir. 2001) ("After all the Rules of Decision Act itself ends with the qualifying phrase 'in cases where [state laws] apply.' " (footnote omitted)).
330. See, e.g., David P. Currie, Federalism and the Admiralty: "The Devil's Own Mess", 1960 Sup. Ct. Rev. 158.
331. Field, supra note 160.
332. supra notes 156-157 and accompanying text.
333. See Campbell v. City of Haverhill, 155 U.S. 610, 615 (1895) ("Perhaps under the final words of [the RDA], 'in cases where they apply,' the court may have a certain discretion with respect to the enforcement of state statutes such as was exercised by this court in several cases.").
334. Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1168 n.194 (1986) ("The ambiguous phrase "in cases where they apply' surely can be read to mean "in cases in which there is no federal common law preempting state rules of decision.' ").
335. see also Louise Weinberg, Federal Common Law, 83 Nw. U. L. Rev. 805, 816 (1989).
336. See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938).
337. See S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917).
338. See, e.g., Sipuel v. Bd. of Regents, 332 U.S. 631 (1948) (invalidating the University of Oklahoma Law School's racially exclusionary policies by relying exclusively on the precedential force of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)).
339. 326 U.S. 99 (1945).
340. See Revisor's Note at 28 U.S.C. § 1652 (2006) (noting that "Civil actions' was substituted for 'trials at common law' to clarify the meaning of the Rules of Decision Act in the light of the Federal Rules of Civil Procedure. Such Act has been held to apply to suits in equity").
341. See Wright & Kane, supra note 16, at 370 ("No issue in the whole field of federal
342. jurisprudence has been more difficult than determining the meaning of this statute.").
343. Early court rulings interpreting the original Rules of Decision Act, which are relevant only to the extent that they might provide evidence of the statute's meaning at the time of enactment, construed the RDA to require the application of state law only in areas that they deemed governed by "local" law, such as title to real property. These diversity courts retained their prerogative to apply "general" law-such as the law merchant and the law of nations-in
344. See, e.g., Welch v. Tex. Dep't of Highways & Pub. Transp., 483 U.S. 468, 496 (1987) (Scalia, J., concurring) (noting that the "correctness of Hans as an original matter" presents a "complex" question).
345. See, e.g., Learned Hand, The Spirit of Liberty, in The Spirit of Liberty: Papers and Addresses of Learned Hand 189, 190 (Irving Dillard ed., 2d ed. 1953) ("The spirit of
346. liberty is the spirit which is not too sure that it is right[.]")
347. Sunstein, supra note 21, at 139 (noting that judges may adopt decisionmaking strategies "out of an awareness of their own limitations and their capacity for error"). Compare Apprendi v. New Jersey, 530 U.S. 466, 481-83 & nn.9-10 (2000) (relying on Joel Prentiss Bishop's criminal-law treatises to support the claim that the Sixth and Fourteenth Amendments, as originally understood, required that any fact that increased the maximum allowable penalty was treated as an "element" of a crime), and id. at 510-12 (Thomas, J., concurring) (same), with Jonathan F. Mitchell, Apprendi's Domain, 2006 Sup. Ct. Rev. 297, 329-42 (compiling nineteenth-century state-court rulings that contradict the claims in Bishop's treatises).
348. See Vermeule, supra note 23, at 1 ("The question in law is never 'How should this text be interpreted?' The question is always 'What decision-procedures should particular institutions, with their particular capacities, use to interpret this text?' ")
349. see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 255 ("What decision procedure should a nine-member body employ to reach the best decisions they can over an array of cases highlighting experiential and political differences among the nine decisionmakers?").
350. See, e.g., Adam M. Samaha, Originalism's Expiration Date, 30 Cardozo L. Rev. 1295, 1328 (2008) (noting that originalism requires decision rules "for situations in which the method 'runs out' and ends in uncertainty").
351. See, e.g., Berger, supra note 25, at 18-19 (arguing that the Privileges or Immunities Clause forbids only race discrimination regarding the rights listed in the Civil Rights Act of 1866). John Hart Ely, Democracy and Distrust 28 (1980) (characterizing the Privileges or Immunities Clause as "a delegation to future constitutional decision makers to protect certain rights that the document neither lists, at least not exhaustively, nor even in any specific way gives directions for finding," and arguing that the privileges or immunities of citizens should include "representation-reinforcing" rights that protect political minorities)
352. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992) (arguing that the Privileges or Immunities Clause incorporates many, though not all, of the provisions in the Bill of Rights against the states). John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1388 (1992) (characterizing the Privileges or Immunities Clause as primarily an anti-discrimination provision, and arguing that "[t]he main point of the clause is to require that every state give the same privileges and immunities of state citizenship-the same positive law rights of property, contract, and so forth-to all of its citizens" (emphasis added)).
353. See, e.g., Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 101-02 (1991) ("A decision procedure that aims to optimize in every case may be self-defeating, producing worse results in the aggregate than a decision procedure with more modest ambitions.[R]ules may at times represent second-best solutions, optimal in reality even though suboptimal from the perspective of an unattainable (in practice) ideal.").
354. See Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitution, 65 Fordham L. Rev. 1269 (1997).
355. 134 U.S. 1 (1890).
356. 517 U.S. 44 (1996).
357. Gonzales v. Raich, 545 U.S. 1 (2005)
358. Daniel v. Paul, 395 U.S. 298 (1969).
359. See McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).
360. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).
361. 535 U.S. 743 (2002).
362. Fed. Mar. Comm'n, 535 U.S. at 754.
363. 530 U.S. 428 (2000).
364. Dickerson, 530 U.S. at 443 (2000) ("Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.").
365. 515 U.S. 200 (1995).
366. Adarand Constructors, Inc., 515 U.S. at 212-31.
367. 488 U.S. 469 (1989).
368. 497 U.S. 547 (1990).
369. Metro. Broad., Inc., 497 U.S. at 563.
370. Id. (declaring that "deference was appropriate in light of Congress' institutional competence as the National Legislature").
371. 530 U.S. 914 (2000).
372. 550 U.S. 124 (2007).
373. See, e.g., Martha C. Nussbaum, The Supreme Court, 2006 Term-Foreword: Constitutions and Capabilities: "Perception" Against Lofty Formalism, 121 Harv. L. Rev. 4, 84 (2007)
374. Geoffrey R. Stone, Essay, The Roberts Court, Stare Decisis, and the Future of Constitutional Law, 82 Tul. L. Rev. 1533, 1538 (2008).
375. 410 U.S. 113 (1973).
376. 505 U.S. 833 (1992).
377. 517 U.S. 44 (1996).
378. See, e.g., Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 788 (2002) (Breyer, J., dissenting) (promising "continued dissent" from the Rehnquist Court's sovereignimmunity jurisprudence). Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 97 (2000) (Stevens, J., dissenting) ("Despite my respect for stare decisis, I am unwilling to accept Seminole Tribe as controlling precedent.").
379. 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
380. See Lawrence, 539 U.S. 558.
381. See Casey, 505 U.S. at 845-46.
382. See, e.g., Gonzales v. Raich, 545 U.S. 1, 20 (2005).
383. See supra note 56 and accompanying text.
384. See, e.g., Charles Fried, The Supreme Court, 2001 Term-Comment: Five to Four: Reflections on the School Voucher Case, 116 Harv. L. Rev. 163, 177, 190-91 (2002) (criticizing Justice Souter for opportunistically invoking stare decisis, and contrasting his eagerness to embrace precedent in Casey with his determination to overrule the Rehnquist Court's sovereign-immunity and Establishment Clause jurisprudence).
385. See 543 U.S. 220, 326-31 (2005) (Breyer, J., dissenting) (refusing to accept the binding authority of the Court's precedents when considering a constitutional challenge to the federal sentencing statute).
386. See Blakely v. Washington, 542 U.S. 296 (2004) (prohibiting judges from imposing sentences beyond the maximum sentence allowed based on facts found by the jury or admitted by the defendant). United States v. Booker, 543 U.S. 220, 233 (2005) ("As the dissenting opinions in Blakely recognized, there is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in that case.").
387. 505 U.S. 833 (1992).
388. Casey, 505 at 855, 860-61.
389. 347 U.S. 483 (1954).
390. See Casey, 505 U.S. at 863-64.
391. 301 U.S. 1 (1937).
392. See supra Section II.B.3.
393. See supra Section II.B.2.
394. Of course, the Casey Court would still need to provide a persuasive justification for its decision to apply judicial precedents as general common law over the abortion policies enacted by a state's elected representatives. The point is only that Article VI has nothing to say on that fiercely debated question.
395. 539 U.S. 558 (2003) (refusing to adhere to stare decisis after concluding that a state criminal prohibition on homosexual sex conflicted with the federal Constitution).
396. 299 U.S. 304, 319 (1936) (upholding the president's authority to prohibit sales of arms to other countries, and declaring that "[t]he President is the sole organ of the nation in its external relations").
397. 301 U.S. 324 (1937) (enforcing an executive agreement between the United States and the Soviet Union and using it to displace state law).
398. See 315 U.S. 203 (1942) (following Belmont by enforcing an executive agreement and using it to displace state law).
399. 453 U.S. 654 (1981) (enforcing an executive agreement that settled legal claims of U.S. nationals against the government of Iran and relegated those claims to an international tribunal).
400. See, e.g., U.S. Dep't of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President 6-10 (2006), available at http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf (relying on Curtiss-Wright and other judicial precedents to justify the Bush Administration's disregard of federal statutory provisions in the Foreign Intelligence Surveillance Act).
401. Curtiss-Wright, 299 U.S. at 319 (emphasis added).
402. Belmont, 301 U.S. at 327.
403. Pink, 315 U.S. at 230-31.
404. Dames & Moore, 453 U.S. at 679 ("[T]here has also been a longstanding practice of settling [claims of American nationals against foreign countries] by executive agreement without the advice and consent of the Senate.").
405. 539 U.S. 396, 415-17 (2003) (invoking Belmont and Pink to support the propositions that "executive agreements are fit to preempt state law" and that a "claim of preemption [may] rest on asserted interference with the foreign policy those agreements embody").
406. 552 U.S. 491, 532 (2008) ("The Executive's narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current Presidential Memorandum.").
407. 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
408. Youngstown, 343 U.S. at 635 (Jackson, J., concurring).
409. Id. at 637 (Jackson, J., concurring).
410. Id. at 635 (Jackson, J., concurring).
411. Both Chief Justice Roberts and Justice Alito endorsed the Jackson framework during their confirmation hearings as the starting point from which to evaluate executive-power claims. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 152 (2005) (statement of John G. Roberts, Jr., J., D.C. Circuit). Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 403 (2006) (statement of Samuel A. Alito, Jr., J., 3d Circuit). Other jurists and commentators have heaped praise on Jackson's opinion.
412. See, e.g., Sanford Levinson, Speaking in the Name of the Law: Some Reflections on Professional Responsibility and Judicial Accountability, 1 U. St. Thomas L.J. 447, 462 (2003) (describing Jackson's Youngstown concurrence as "the greatest opinion in our 215-year history of constitutional opinions")
413. William H. Rehnquist, Robert H. Jackson: A Perspective Twenty-Five Years Later, 44 Alb. L. Rev. 533, 539 (1980) (calling the Youngstown concurrence "a 'state paper' of the same order as the best of the Federalist Papers, or of John Marshall's opinions for the Court").
414. United States v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990) ("[T]he purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government. it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.")
415. Johnson v. Eisentrager, 339 U.S. 763, 783 (1950) (rejecting the notion that "the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses"). United States v. Belmont, 301 U.S. 324, 332 (1937) ("[O]ur Constitution, laws and policies have no extraterritorial operation, unless in respect of our own citizens.").