Settled versus right: Constitutional method and the path of precedent

Texas Law Review

Volumn 91, Issue 7, 2013, Pages 1843-1896

  Kozel, Randy J ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 84883297271     PISSN: 00404411     EISSN: None     Source Type: Journal    
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References (381)

1. See, e.g., DAVID A. STRAUSS, THE LIVING CONSTITUTION 33-36 (2010) (emphasizing the importance of precedent to constitutional adjudication)
2. Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 GEO. WASH. L. REV. 68, 139 (1991) ("The gloss added to the Constitution in the form of precedents is an integral part of most dialogues among the Justices about the Constitution.").
3. See, e.g., Citizens United v. FEC, 558 U.S. 310, 362-63 (2010) ("Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.")
4. Roper V. Simmons, 543 U.S. 551, 574-75 (2005) (declining to follow a precedent based in part on the view that the precedent was inconsistent with cases that came before and after it)
5. Lawrence v. Texas, 539 U.S. 558, 576 (2003) (asserting in the course of overruling Bowers v. Hardwick, 478 U.S. 186 (1986), that the "foundations" of Bowers had already "sustained serious erosion" from more recent decisions).
6. The complete phrase is "stare decisis et non quieta movere-stand by the thing decided and do not disturb the calm." James C. Rehnquist, Note, 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).
7. See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 GEO. L.J. 1, 30 (2010) ("[I]n their confirmation hearings both then-Judge Roberts and then-Judge Alito gave assurances about adherence to stare decisis.")
8. Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. PA. J. CONST. L. 155, 156 (2006) ("In the Warren Court era, the political, judicial, and academic left seemed to view constitutional stare decisis as the enemy of progressive (living constitution) constitutionalism. In the Roberts Court era, stare decisis may be the last defense of Warren Court precedents against conservative (originalist) constitutionalism on the ascendancy.").
9. Though it is widely accepted as valid, the doctrine of stare decisis has attracted a handful of prominent opponents in the context of constitutional law. See infra section III(A)(1).
10. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 & n.1 (1991) (discussing the Court's record of overruling its constitutional decisions).
11. E.g., Dep't of Revenue v. Davis, 553 U.S. 328, 359-60 (2008) (Scalia, J., concurring in part)
12. Tennessee v. Lane, 541 U.S. 509, 564 (2004) (Scalia, J., dissenting)
13. Dickerson v. United States, 530 U.S. 428, 443 (2000)
14. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 861 (1992)
15. Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. REV. 570, 571 (2001).
16. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).
17. Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 CONST. COMMENT. 257, 261 (2005).
18. See, e.g., Casey, 505 U.S. at 854 (noting the importance of assessing "the respective costs of reaffirming and overruling a prior case")
19. Citizens United, 558 U.S. at 378 (Roberts, C.J., concurring) ("When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.")
20. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) ("To overturn a decision settling one such matter simply because we might believe that decision is no longer 'right' would inevitably reflect a willingness to reconsider others.").
21. CF. WILLIAM SHAKESPEARE, THE TRAGEDY OF HAMLET, PRINCE OF DENMARK, act 2, sc. 2 (E.K. Chambers ed., D.C. Heath & Co. 1917) (1603) ("[T]here is nothing either good or bad, but thinking makes it so ").
22. Compare John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 NW. U. L. REV. 803, 804-05 (2009) (adopting a consequentialist approach to originalism)
23. with Kurt T. Lash, Originalism, Popular Sovereignty, and Reverse Stare Decisis, 93 VA. L. REV. 1437, 1446-47 (2007) (adopting an approach to originalism based on popular sovereignty).
24. See Lash, supra note 12, at 1439 (contending that "an ultimate theory of stare decisis necessarily reflects the normative commitments underlying a particular interpretive approach").
25. See Citizens United, 558 U.S. at 365 (overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)).
26. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 (1986)).
27. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 853 (1992) (reaffirming the "central holding" of Roe v. Wade, 410 U.S. 113 (1973)).
28. See Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (reconsidering Regents of the Univ. of Ca. v. Bakke, 438 U.S. 265 (1978)).
29. See, e.g., Cass R. Sunstein, Foreword, Leaving Things Undecided, 110 HARV. L. REV. 4, 13 (1996) (noting that "[a]s an institution, the Supreme Court has not made an official choice" among competing theories of constitutional interpretation).
30. See District of Columbia v. Heller, 554 U.S. 570, 625 (2008) (adopting an interpretation based on "the original understanding of the Second Amendment").
31. See Strauss, supra note 1, at 33 (arguing that "original understandings play a role only occasionally [in Supreme Court cases], and usually they are makeweights, or the Court admits that they are inconclusive").
32. See infra subpart IV(C).
33. See infra subpart III(A).
34. For a more general discussion of the potential distinction between legal change and legal progress in the context of transition theory, see Kyle D. Logue, Legal Transitions, Rational Expectations, and Legal Progress, 13 J. CONTEMP. LEGAL ISSUES 211, 239-49 (2003).
35. Cf. Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (contending that binding judicial authority "is not merely evidence of what the law is," but rather "caselaw on point is the law").
36. The topic of this Part is the variety of ways in which precedent is deployed in the context of constitutional litigation and adjudication. Judicial precedents also have manifold consequences beyond the courthouse doors for elected officials, administrative agencies, and the public at large. For a thoughtful treatment of those effects, see MICHAEL J. GERHARDT, THE POWER OF PRECEDENT 147-76 (2008).
37. I draw the description of lower-court constraint as representing the "hierarchical" use of precedent from Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 819 (1994).
38. See, e.g., Richard H. Jr Fallon, Constitutional Constraints, 97 CALIF. L. REV. 975, 1008 (2009) ("Lower court judges are frequently subject to mediated constitutional constraints, reflecting their obligations to accept the Supreme Court's interpretation of the Constitution even when they believe the Court has erred.").
39. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) ("[I]t is this Court's prerogative alone to overrule one of its precedents.")
40. Agostini v. Felton, 521 U.S. 203, 237 (1997) ("We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent.").
41. See, e.g., Solum, supra note 4, at 188 ("When it comes to vertical stare decisis, the conventional notion is that the decisions of higher courts are binding on lower courts. A court of appeals may not decide to overrule a Supreme Court decision because the advantages of the better rule outweigh the costs of changing legal rules."). For a comparative perspective on the bindingness of vertical precedent
42. see generally Santiago Legarre, Precedent in Argentine Law, 57 LOY. L. REV. 781 (2011).
43. See Frederick Schauer, Essay, Authority and Authorities, 94 VA. L. REV. 1931, 1943 (2008) ("[I]f an agent is genuinely persuaded of some conclusion because she has come to accept the substantive reasons offered for that conclusion by someone else, then authority has nothing to do with it.").
44. Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1340 n.6 (2011) (Scalia, J., dissenting).
45. See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23, 25 (1994) (noting the differing implications of the persuasive and self-constraining functions of precedent).
46. See Schauer, supra note 30, at 1951 ("The author of a brief or opinion who uses support to deny genuine novelty is asking the reader to take the supported proposition as being at least slightly more plausible because it has been said before than had it not been.").
47. Compare Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2590 (2012) ("Our precedents recognize Congress's power to regulate 'class[es] of activities,' not classes of individuals, apart from any activity in which they are engaged." (citations omitted) (quoting Gonzales v. Raich, 545 U.S. 1, 17 (2005))), with id. at 2609 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) ("Since 1937, our precedent has recognized Congress' large authority to set the Nation's course in the economic and social welfare realm."), and id. at 2646 (Scalia, J., dissenting) ("At the outer edge of the commerce power, this Court has insisted on careful scrutiny of regulations that do not act directly on an interstate market or its participants.").
48. 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, 329 (2005).
49. See Jill E. Fisch, The Implications of Transition Theory for Stare Decisis, 13 J. CONTEMP. LEGAL ISSUES 93, 96 (2003) ("Over a series of decisions, a precedent that is never formally overruled may lose much of its force through incremental judicial decisionmaking.").
50. See, e.g., Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 403 (2011) ("Judges in the United States... are embedded within a common law tradition of incremental policymaking through the slow accretion of a body of principles, standards, and rules that we collectively call 'the law.'")
51. Robert H. Jackson, Decisional Law and Stare Decisis, 30 A.B.A. J. 334, 334 (1944) ("[S]tare decisis is an old friend of the common lawyer.").
52. See Keith E. Whittington, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 169 (1999) ("An originalist Court need not seek to overturn the existing corpus of constitutional law overnight, or even over a decade [M]odification of existing precedent can take place over a series of cases over a period of years without unduly damaging either the judiciary or the structure of constitutional law.").
53. Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353, 402 (2006)
54. see also Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. 411, 426 (2012) ("To a Burkean, historical practice is important in part because of its potential to reflect collective wisdom generated by the judgments of numerous actors over time.")
55. Sunstein, supra, at 368 (arguing that "Burkean courts attempt a delegation of power from individual judges to firmly rooted traditions" or to "the judiciary's own past").
56. Cf. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921, 925 (1992) (describing the value of "accommodating change to the larger, essentially stable context in which it occurs").
57. Cf. Barry Friedman, The Will of the People and the Process of Constitutional Change, 78 GEO. WASH. L. REV. 1232, 1237 (2010) ("Each constitutional decision of the Supreme Court... invariably shifts constitutional practice in some small way Most of this change is interstitial, even glacial-the gradual working out of doctrine and principle.").
58. See, e.g., Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 576 (1987) ("If precedent matters, a prior decision now believed erroneous still affects the current decision simply because it is prior.").
59. United States v. Lopez, 514 U.S. 549, 574 (1995) (Kennedy, J., concurring).
60. For a discussion of those challenges, see infra section III(A)(1) and subpart V(A).
61. As a corollary, the balance of the Article will deal with precedent in its horizontal dimension-which implicates the doctrine of stare decisis in the sense of a court's fidelity to its own past self-rather than its vertical dimension of imposing binding constraints on inferior courts.
62. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (describing Bowers v. Hardwick as "not correct when it was decided").
63. See, e.g., Geoffrey R. Stone, Precedent, the Amendment Process, and Evolution in Constitutional Doctrine, 11 HARV. J.L. & PUB. POL'Y 67, 71 (1988) ("[A] Justice may conclude that a prior decision was premised on a state of affairs that has changed so much over time that the Justices who reached the prior decision would themselves have reached a different result in light of the changed circumstances.").
64. See, e.g., Citizens United v. FEC, 558 U.S. 310, 378 (2010) (Roberts, C.J., concurring) (contending that "none of" the Justices understand stare decisis in "absolute terms")
65. Payne v. Tennessee, 501 U.S. 808, 828 (1991) ("Stare decisis is not an inexorable command ")
66. Helvering v. Hallock, 309 U.S. 106, 119 (1940) ("[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision ").
67. The formal move away from this approach occurred in 1966: Their Lordships... recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234.
68. See Neil Duxbury, THE NATURE AND AUTHORITY OF PRECEDENT 127 (2008) ("Before 1966, the House of Lords had distinguished some of its own precedents to the point where they were effectively stripped of authority. What had the House been doing in those instances, if not 'departing from' its previous decisions?" (footnote omitted))
69. Max Radin, The Trail of the Calf, 32 CORNELL L.Q. 137, 143 (1946) (arguing that the House of Lords "carried the technique of distinguishing to a very high pitch of ingenuity").
70. For a leading formulation of the components of the doctrine of stare decisis, see Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-55 (1992).
71. See also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 412 (2012) (enumerating several of the common factors)
72. Randy J. Kozel, Stare Decisis as Judicial Doctrine, 67 WASH. & LEE L. REV. 411, 416-49 (2010) (analyzing the doctrine's components).
73. See, e.g., Citizens United, 558 U.S. at 319 (concluding that "stare decisis does not compel the continued acceptance" of the applicable precedent).
74. The words, though obviously not the context, are from T.S. Eliot, The Love Song of J. Alfred Prufrock, POETRY, June 1915, reprinted in CATHOLIC ANTHOLOGY 1914-1915, at 2, 2 (1915).
75. See also Jackson, supra note 37 ("To overrule an important precedent is serious business. It calls for sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.").
76. See, e.g., Walton v. Arizona, 497 U.S. 639, 673 (1990) (Scalia, J., concurring in part and concurring in the judgment) ("The doctrine [of stare decisis] exists for the purpose of introducing certainty and stability into the law and protecting the expectations of individuals and institutions that have acted in reliance on existing rules.")
77. CF. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 157 (Touchstone 1991) (1990) ("In constitutional law, as in all law, there is great virtue in stability. Governments need to know their powers, and citizens need to know their rights; expectations about either should not lightly be upset.")
78. Stephen Breyer, Making Our Democracy Work: The Yale Lectures, 120 YALE L.J. 1999, 2024 (2011) ("When the Court considers the work of past Courts, the key concept is stare decisis while the key attitude recognizes the importance of reliance.").
79. See, e.g., AKHIL REED AMAR, AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY 239 (2012) (noting that there is an "equitable principle, prominent in judicial decisions stretching back hundreds of years, [that] directs judges to give due weight to the ways in which litigants who come before the Court may have reasonably relied upon prior case law").
80. See, e.g., Citizens United, 558 U.S. at 365 (recognizing that "reliance interests are important considerations in property and contract cases, where parties may have acted in conformance with existing legal rules in order to conduct transactions")
81. Quill Corp. v. North Dakota, 504 U.S. 298, 317 (1992) (noting that the precedent in question "has engendered substantial reliance and has become part of the basic framework of a sizable industry").
82. See, e.g., Randall v. Sorrell, 548 U.S. 230, 244 (2006) (plurality opinion) ("Buckley [v. Valeo, 424 U.S. 1 (1976) (per curiam)] has promoted considerable reliance. Congress and state legislatures have used Buckley when drafting campaign finance laws.").
83. See Dickerson v. United States, 530 U.S. 428, 443 (2000) (describing the impact of Miranda v. Arizona, 384 U.S. 436 (1966), on "our national culture")
84. Planned Parenthood of Se. Pa.v. Casey, 505 U.S. 833, 856 (1992) (discussing reliance by "people who have ordered their thinking and living around" the rule of Roe v. Wade, 410 U.S. 113 (1973).
85. See Randy J. Kozel, Precedent and Reliance, 62 EMORY L.J. (forthcoming 2013).
86. For an argument that the consequences of deviating from precedent are more aptly described in terms of avoiding forward-looking disruption as opposed to backward-looking reliance, see generally id. The distinction is immaterial for present purposes; both formulations are independent of interpretive method.
87. See Casey, 505 U.S. at 956 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (describing the majority's assertions relating to precedential reliance as "undeveloped and totally conclusory")
88. Quill Corp., 504 U.S. at 331-32 (White, J., concurring in part and dissenting in part) (describing the majority's assertions of precedential reliance as unsupported by evidence).
89. 505 U.S. 833 (1992).
90. See id. at 856 (citing "two decades" of societal reliance upon "the availability of abortion in the event that contraception should fail").
91. Barnett, supra note 9, at 266.
92. Cf. Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 702 (1999) ("If private investment in contract and property interests is sufficient to demand adherence to arguably erroneous precedent, public investment in governmental structures should produce a similar effect.")
93. Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1, 63 (2001) ("To the extent that a court's general willingness to overrule precedents increases uncertainty about which rules the court will apply, it may also generate more systemic costs-costs that cannot be identified with any particular change, but that are no less real.").
94. Cf. Quill Corp., 504 U.S. at 321 (Scalia, J., concurring in part and concurring in the judgment) (noting that reliance on precedent "may not always carry the day").
95. Jeremy Waldron, Stare Decisis and the Rule of Law: A Layered Approach, 111 MICH. L. REV. 1, 3 (2012).
96. See, e.g., Richard H. Jr. Fallon, "The Rule of Law" as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 2-3 (1997) (making the contrast).
97. John Finnis, NATURAL LAW AND NATURAL RIGHTS 274 (2d ed. 2011).
98. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992) ("[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.")
99. Welch v. Tex. Dep't of Highways & Pub. Transp., 483 U.S. 468, 478-79 (1987) (plurality opinion) ("The rule of law depends in large part on adherence to the doctrine of stare decisis. Indeed, the doctrine is 'a natural evolution from the very nature of our institutions.'" (quoting W.M. Lile, Some Views on the Rule of Stare Decisis, 4 VA. L. REV. 95, 97 (1916)))
100. CF. Richard Primus, Response, Public Consensus as Constitutional Authority, 78 GEO. WASH. L. REV. 1207, 1227 (2010) ("One aspect of the rule of law is a set of legal norms that are stable enough to enable planning and justify reliance.").
101. See, e.g., Waldron, Supra note 67, at 31 ("I do not endorse the position... that '[t]he rule of law depends in large part on adherence to the doctrine of stare decisis.' But it might be true the other way around: the justification of stare decisis might depend to a large extent on the rule of law." (footnote omitted) (quoting Welch, 483 U.S. at 478-79)).
102. Schauer, supra note 42, at 598
103. see also id. ("Predictability thus often has value even when we cannot quantify it.")
104. Cf. Helvering v. Hallock, 309 U.S. 106, 119 (1940) (describing stare decisis as "rooted in the psychologic need to satisfy reasonable expectations").
105. See, e.g., Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEXAS L. REV. 1, 11-12 (1994) ("Because today's decision will be taken into account in future cases, the Court must judge not only what is best for today,but also how the current decision will affect the decision of others cases in the future.").
106. Waldron, supra note 67, at 19-20.
107. But cf. Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 YALE L.J. 399, 416-17 (2001) (noting the argument that "interpreters will reason impartially if they anticipate that the decision may be invoked in future cases whose valence in terms of the decisionmakers' future interests is unpredictable" but responding that "it is hardly clear that durability successfully dampens decisionmakers' self-interest").
108. See, e.g., Caminker, Supra note 26, at 853 ("Frequent or immediate overrulings, especially when prompted by a change in personnel, cast into doubt courts' commitment to making decisions free from politics and personal whim.")
109. Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 753 (1988) ("If courts are viewed as unbound by precedent, and the law as no more than what the last Court said, considerable efforts would be expended to get control of such an institution-with judicial independence and public confidence greatly weakened."). For a comparable argument regarding reliance on precedent within the Office of Legal Counsel
110. see Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 COLUM. L. REV. 1448, 1497 (2010) ("Because OLC understands and advertises its job as providing legal advice consistent with its best view of the law, its credibility depends on its appearing to conduct itself in that manner. Adhering to precedent-and in particular, advertising that it adheres to precedent-can contribute to that appearance.").
111. Benjamin N. Cardozo, THE NATURE OF THE JUDICIAL PROCESS 150 (1921).
112. THE FEDERALIST NO. 78, at 470 (Alexander Hamilton) (Clinton Rossiter ed., 1961)
113. see also Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) (citing Hamilton's language in describing stare decisis as "a basic self-governing principle within the Judicial Branch").
114. Monaghan, supra note 75, at 743.
115. See Waldron, supra note 67, at 13 ("[T]he principle of stare decisis seems to introduce its own distinctive uncertainty into the law, particularly insofar as it does not operate as an absolute."). But see DUXBURY, supra note 50, at 167 ("The activity [of precedent following] can be commended... because it eradicates only some judicial discretion; for were it to eradicate all judicial discretion, the doctrine of stare decisis would be inappropriate to the common law.").
116. See, e.g., CARDOZO, supra note 76, at 149 ("[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case")
117. Fallon,supra note 7, at 573 ("The doctrine [of stare decisis] liberates the Justices from what otherwise would be a constitutional obligation to reconsider every potentially disputable issue as if it were being raised for the first time ").
118. See Taylor V. Sturgell, 553 U.S. 880, 903-04 (2008) (asserting that "even where stare decisis is not dispositive, 'the human tendency not to waste money will deter the bringing of suits based on claims or issues that have already been adversely determined against others'" (quoting DAVID L. SHAPIRO, CIVIL PROCEDURE: PRECLUSION IN CIVIL ACTIONS 97 (2001))).
119. See, e.g., Montejo V. Louisiana, 556 U.S. 778, 792 (2009) ("[T]he fact that a decision has proved 'unworkable' is a traditional ground for overruling it." (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991))).
120. See Thomas R. Lee, Stare Decisis in Economic Perspective: An Economic Analysis of the Supreme Court's Doctrine of Precedent, 78 N.C. L. REV. 643, 670 (2000) ("[U]nworkable decisions are by definition uncertain, so their retention should be expected to require ongoing and inefficient expenditures on measures aimed at divining their application and effect.")
121. Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535, 1552 (2000) ("The inquiry into 'workability,' as framed by the Court, is essentially a question of whether the Court believes itself able to continue working within a framework established by a prior decision. The unworkability of precedent provides additional incentive for the judiciary to overrule it.").
122. See Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965) ("[Precedent] should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice; the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great.").
123. Compare, e.g., Arizona V. Gant, 556 U.S. 332, 360 (2009) (Alito, J., dissenting) (finding a precedent to be workable where it provided "a test that would be relatively easy for police officers and judges to apply"), with Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 64 (1996) (finding a precedent to be unworkable where it had "created confusion among the lower courts that [had] sought to understand and apply [it]").
124. Compare Altria Grp., Inc. v. Good, 555 U.S. 70, 84 (2008) (reaffirming a precedent despite acknowledging its lack of "'theoretical elegance'" (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 529 n.27 (1992) (plurality opinion))), with id. at 97 (Thomas, J., dissenting) (concluding that the precedent should be overruled because, inter alia, it "has proved unworkable").
125. Compare Dickerson v. United States, 530 U.S. 428, 444 (2000) (defending Miranda's workability), with id. at 463-64 (Scalia, J., dissenting) (assailing Miranda's workability). See Montejo, 556 U.S. at 808 (Stevens, J., dissenting) (criticizing the majority's labeling of a precedent as unworkable).
126. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 232 (1995) (O'Connor, J.) ("We cannot adhere to our most recent decision without colliding with an accepted and established doctrine.")
127. Helvering V. Hallock, 309 U.S. 106, 119 (1940) ("But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.").
128. See Citizens United v. FEC, 558 U.S. 310, 348 (2010) ("The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker's corporate identity and a post-Austin line that permits them.").
129. See Lawrence v. Texas, 539 U.S. 558, 576 (2003) ("The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer [v. Evans, 517 U.S. 620 (1996)].").
130. See, e.g., Gerhardt, Supra note 25, at 31 (noting the Supreme Court's receptiveness to overruling precedent based on "irreconcilability with subsequent case law"). The appeal to jurisprudential coherence as a justification for departing from precedent is no recent innovation.
131. See Jerold H. Israel, Gideon v. Wainwright: The "Art" of Overruling, 1963 SUP. CT. REV. 211, 223 (noting that the Supreme Court often "attempted to buttress its position by showing that the rejection of the overruled case was required, or at least suggested, by other, later decisions basically inconsistent with its earlier ruling").
132. See, e.g., McGinnis & Rappaport, Supra note 12, at 847 ("Legal incoherence in jurisprudence has negative consequences because individuals have more trouble complying with a set of rules that are incoherent and hard to understand.").
133. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 144 (2008) (Ginsburg, J., dissenting) ("It damages the coherence of the law if we cling to outworn precedent at odds with later, more enlightened decisions.").
134. See Fallon, Supra note 68, at 5 ("[I]n contemporary constitutional discourse it is by no means anomalous to find competing Rule-of-Law claims arrayed against each other.").
135. See, e.g., Citizens United v. FEC, 558 U.S. 310, 378 (2010) (Roberts, C.J., concurring) ("[I]n the unusual circumstance when fidelity to any particular precedent does more to damage [the] constitutional ideal [of the rule of law] than to advance it, we must be more willing to depart from that precedent.")
136. Cf. Christopher J. Peters, Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis, 105 YALE L.J. 2031, 2034 (1996) (arguing that "stare decisis has the potential to import injustice irremediably into the law").
137. See Randy J. Kozel, The Rule of Law and the Perils of Precedent, 111 MICH. L. REV. FIRST IMPRESSIONS 37, 40 (2013).
138. Cf. JOHN HICKS, The Rehabilitation of Consumers' Surplus, In COLLECTED ESSAYS ON ECONOMIC THEORY: WEALTH AND WELFARE 100, 105 (1981) (suggesting that certain enhancements to productive efficiency that leave some parties worse off can nevertheless create a "strong probability that almost all [inhabitants of the community] would be better off after the lapse of a sufficient length of time").
139. CF. Nelson, Supra note 65, at 62 (arguing that "the primary reason we want courts to avoid erroneous interpretations of the written law is that we value democracy").
140. See Jeremy Waldron, The Concept and the Rule of Law, 43 GA. L. REV. 1, 8 (2008) ("The procedural side of the Rule of Law presents a mode of governance that allows people a voice, a way of intervening on their own behalf in confrontations with power. It requires that public institutions sponsor and facilitate reasoned argument in human affairs.").
141. Stone, Supra note 47, at 69.
142. See Andrew B. Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. PA. L. REV. 1025, 1061 (2010) (describing the argument that "[i]f constitutional meaning were irrevocably settled, some groups would be permanently cast as constitutional losers, eliminating or reducing their sense of participation in a shared community")
143. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA, 94 CALIF. L. REV. 1323, 1328 (2006) ("In a normatively divided polity, a system that permanently resolves the Constitution's meaning risks permanently estranging groups in ways that a system enabling a perpetual quest to shape constitutional meaning does not.")
144. Cf. Fallon, supra note 7, at 584 (noting that "[w]ithin our constitutional regime, it is healthy for there to be some degree of ferment and reconsideration" but cautioning that "it would overtax the Court and the country alike to insist... that everything always must be up for grabs at once").
145. I tend to believe that this is indeed the case. For a very brief introduction to the issue, see Kozel, Supra note 96, at 40-44.
146. I use the concept of "interpretive" method to indicate both the discernment of the Constitution's semantic meaning and the conversion of that meaning into legal doctrine. Some commentators emphasize the distinction between these two tasks, dubbing the former "interpretation" and the latter "construction." E.g., Lawrence B. Solum, The Interpretation- Construction Distinction, 27 CONST. COMMENT. 95, 100-03 (2010). The analysis presented in this Article is not affected by one's view of the distinction, so for simplicity I include both concepts under the label of "interpretation." Cf. JACK M. BALKIN, LIVING ORIGINALISM 4-5 (2011) (noting the prevalence of this practice as a usage convention).
147. Lawrence B. Solum, Faith and Fidelity: Originalism and the Possibility of Constitutional Redemption, 91 TEXAS L. REV. 147, 154 (2012)
148. see also id. at 154-55 (describing this proposition as the "fixation thesis," and distinguishing it from the "constraint principle," which provides that "original meaning should have binding or constraining force").
149. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1134-35 (2003).
150. Id. at 1135.
151. Id. at 1135-36. What is perhaps the most famous criticism of intentions-based originalism is Paul Brest
152. The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980). 108. Solum, supra note 104, at 153-54.
153. defining New Originalism as based on the theory that "the original meaning of the Constitution is the original public meaning of the constitutional text"
154. see also Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 620 (1999) ("[O]riginalism has itself changed-from original intention to original meaning.").
155. See Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47, 48 (2006) ("Ever since 1986, when then-Judge Antonin Scalia articulated the distinction between original intent... and original meaning... modern originalists have moved steadily towards the latter.").
156. But see, e.g., Richard S. Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 NW. U. L. REV. 703, 714 (2009) (defending a paramount focus on original intentions).
157. For a concise summary of the relevance of these factors to the structuralist position, see Gary Lawson, Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy, 110 MICH. L. REV. FIRST IMPRESSIONS 33, 36-37 (2011).
158. See generally Lawson, Supra note 32
159. Cf. Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 AVE MARIA L. REV. 1, 4 (2007) (accepting the use of constitutional precedent "if, but only if, the precedent is the best available evidence of the right answer to constitutional questions").
160. 5 U.S. (1 Cranch) 137 (1803).
161. Lawson, Supra note 32, at 26
162. see also id. at 28 ("[T]he case for judicial review of legislative or executive action is precisely coterminous with the case for judicial review of prior judicial action.").
163. See id. at 27-28 ("If the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution.")
164. Cf. THE FEDERALIST NO. 78, Supra note 77, at 465-66 ("There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.").
165. See, e.g., Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 CONST. COMMENT. 289 (2005).
166. Id. at 289.
167. Randy Barnett has sketched an approach to stare decisis similar to that of Professors Lawson and Paulsen.
168. See Barnett, Supra note 9, at 259 ("Accepting that judicial precedent can trump original meaning puts judges above the Constitution they are supposed to be following, not making."). Professor Barnett's underlying normative premises, however, are distinctive. He emphasizes fidelity to the written Constitution as a means of legitimating its application to those who never expressly consented to it.
169. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 117 (2004) ("Only if lawmakers cannot change the scope of their own powers can the rights of the people be in any way assured. In this way, constitutional legitimacy based on natural rights, rather than popular sovereignty or consent, can ground a commitment to originalism.").
170. 410 U.S. 113 (1973).
171. 505 U.S. 833, 846 (1992).
172. See, e.g., Paulsen, Supra note 83, at 1539 ("My motivation for writing, revealed in the style of my presentation, is one that openly reflects a desire that Roe be overturned.").
173. Cf. STRAUSS, Supra note 1, at 1 ("A 'living constitution' is one that evolves, changes over time, and adapts to new circumstances, without being formally amended.").
174. See David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 891 (1996) ("[T]he traditionalism that is central to common law constitutionalism is based on humility and, related, a distrust of the capacity of people to make abstract judgments not grounded in experience.").
175. Id. at 911
176. see David A. Strauss, We the People, They the People, and the Puzzle of Democratic Constitutionalism, 91 TEXAS L. REV. 1969, 1969 (2013) (arguing that in difficult constitutional disputes, the text of the Constitution "plays a limited role").
177. Strauss, Supra note 123, at 911.
178. Id. at 894
179. see also id. at 902 ("The reason for adhering to judgments made in the past is the counsel of humility and the value of experience. Moral or policy arguments can be sufficiently strong to outweigh those traditionalist concerns to some degree, and to the extent they do, traditionalism must give way.")
180. Cf. William O. Douglas, Stare Decisis, 49 COLUM. L. REV. 735, 739 (1949) ("Precedents are made or unmade not on logic and history alone. The choices left by the generality of a constitution relate to policy.").
181. See Strauss, Supra note 123, at 895 ("If one is quite confident that a practice is wrong-or if one believes, even with less certainty, that it is terribly wrong-this conception of traditionalism permits the practice to be eroded or even discarded.")
182. Cf. Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1, 7 (1998) ("The role of the constitutional interpreter is to reconcile our deepest constitutional commitments, revealed by all of our constitutional history, with today's preferences.")
183. id. at 63-64 ("When mining our history, we need to look to the actions and positions of constitutional actors ranging well beyond the courts.").
184. STRAUSS, Supra note 1, at 96.
185. See STRAUSS, Supra note 123, at 895 ("Nearly everyone... recognizes that sometimes we must depart from the teachings of the past because we think they are not just or do not serve human needs.")
186. Cf. Fallon, Supra note 7, at 584 ("An entrenched precedent that is normatively reprehensible should be viewed as vulnerable in a way that a more attractive practice is not."). 130. Strauss, supra note 123, at 897.
187. See, e.g., David A. Strauss, Abortion, Toleration, and Moral Uncertainty, 1992 SUP. CT. REV. 1, 4 (arguing that "[i]n cases of true moral uncertainty, an issue should be resolved at the level that minimizes the risk that some group of people will be unacceptably subordinated by the decision makers").
188. Citizens United v. FEC, 558 U.S. 310, 319 (2010) (overruling Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990)).
189. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 (1986)).
190. Dickerson v. United States, 530 U.S. 428, 444
191. (2000) (reaffirming Miranda v. Arizona, 384 U.S. 436 (1966)).
192. Grutter v. Bollinger, 539 U.S. 306 (2003).
193. Cf. Richard J. Jr. Pierce, Reconciling Chevron and Stare Decisis, 85 GEO. L.J. 2225, 2244 (1997) (arguing with respect to the Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1870), that "[t]he Court would be behaving in an extraordinarily irresponsible manner if it overruled a precedent in circumstances in which its decision destroyed trillions of dollars of investments made in reliance on that precedent").
194. See Supra notes 111-14 and accompanying text.
195. See Lash, Supra note 12, at 1439 (noting the role of "normative theory" in informing one's interpretive philosophy and approach to precedent).
196. See Ian Bartrum, Constitutional Value Judgments and Interpretive Theory Choice, 40 FLA. ST. U. L. REV. 259, 265-66, 286 (2013) (discussing THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962) and arguing that "just as with scientific choices, no apparent transcendent kind of rule can compel, rather than influence, our choice between [interpretive modalities]").
197. U.S. CONST. art. VI, cl. 2.
198. See supra section III(A)(1)
199. see also, e.g., Kesavan&Paulsen, Supra note 105, at 1127 ("This clause, conventionally called the Supremacy Clause, but probably as aptly termed the 'Supreme Law Clause,' establishes the text of the document... as that which purports to be authoritative.")
200. Paulsen, Supra note 116, at 291 (contending that "the argument for judicial review in Marbury" is grounded "in the supremacy of the Constitution").
201. Kesavan&Paulsen, Supra note 105, at 1127-28
202. see also U.S. CONST. art. VI, cl. 3 (stating that "judicial Officers... shall be bound by Oath or Affirmation... to support this Constitution").
203. See, e.g., Paulsen, Supra note 116, at 291 ("[C]ourts must apply the correct interpretation of the Constitution, never a precedent inconsistent with the correct interpretation. It follows, then, that if Marbury is right (and it is), stare decisis is unconstitutional.").
204. See Lash, Supra note 12, at 1440 ("Because originalism is an interpretive method and not a normative constitutional theory, different originalists advance different normative grounds for their interpretive approach.")
205. Solum, Supra note 104, at 1 ("Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning.")
206. Cf. Ingrid Wuerth, An Originalism for Foreign Affairs?, 53 ST. LOUIS U. L.J. 5, 9-10 (2008) (recognizing normative differences among strands of originalism and discussing their implications for matters of foreign affairs).
207. See, e.g., John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution, 98 GEO. L.J. 1693, 1695 (2010) ("A constitution that is enacted under a strict supermajority process is likely to be desirable because such a process has features appropriate for determining the content of entrenched laws ").
208. McGinnis&Rappaport, Supra note 12, at 804-05
209. see also id. at 830 ("Strict supermajority rules help to assure that constitutional provisions are supported by a consensus. They also impede the passage of partisan measures because support from both parties is needed for enactment.").
210. See id. at 831-34 (discussing the relative benefits of following original meaning and precedent, respectively).
211. Cf. id. at 837 (advocating favorable treatment of "entrenched precedents" that "are so strongly supported that they would be enacted by constitutional amendment if they were overturned by the courts").
212. 347 U.S. 483 (1954).
213. Michael McConnell has taken the contrary position, arguing that Brown is consistent with principles of originalist interpretation. See Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947, 1140 (1995) ("[S]chool segregation was understood during Reconstruction to violate the principles of equality of the Fourteenth Amendment.").
214. See McGinnis&Rappaport, Supra note 12, at 837-38 (noting with respect to such cases that "[t]he benefits of following the original meaning are small because there is strong support for the new constitutional rule announced in the precedent").
215. See Supra notes 111-17 and accompanying text.
216. Lash, Supra note 12, at 1444-45
217. see also id. at 1445 ("In a constitutional democracy, the laws of the Constitution trump the laws of the mere majority, not because majoritarian laws are illegitimate, but because a variety of factors tend to undermine the link between the will of political actors and the actual majoritarian will of the people." (footnotes omitted)).
218. Id. at 1442.
219. Id. at 1443. For an alternative view of constitutional precedent that shares a focus on popular sovereignty, see AMAR, supra note 55, at 238 (contending that if an unenumerated right is erroneously recognized but later "catches fire and captures the imagination of a wide swathe of citizens, it thereby becomes a proper Ninth Amendment entitlement even though the Court... jumped the gun").
220. Lash, Supra note 12, at 1443.
221. See id. at 1442 ("[W]here erroneous precedents do not threaten or frustrate majoritarian government, the pragmatic considerations of stare decisis are more applicable.").
222. Professor Lash does leave open the possibility that an exceptional case like Brown, "Even if originally in error," might warrant retention based on its "de facto supermajoritarian political ratification."
223. Id. at 1471.
224. The three strands of originalism I have discussed are, I think, sufficient to prove this point. But they are only the tip of the iceberg in terms of the competing versions of originalism. For one additional example that remains mindful of the interplay between precedent and normative premises, see Lee J. Strang, An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good, 36 N.M. L. REV. 419, 436 (2006) (contending that "judges should overrule nonoriginalist constitutional precedent unless doing so would gravely harm society's pursuit of the common good").
225. STRAUSS, Supra note 1, at 38, 45
226. STRAUSS, Supra note 123, at 895-97
227. Cf. Michael C. Dorf, The Undead Constitution, 125 HARV. L. REV. 2011, 2012 (2012) (reviewing JACK M. BALKIN, LIVING ORIGINALISM (2011) & DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010)) (describing Professor Strauss's position that "the common law method itself confers legitimacy on the Court's decisions").
228. See Justin Driver, The Significance of the Frontier in American Constitutional Law, 2011 SUP. CT. REV. 345, 398 (2012) (arguing that "[s]ome of our most cherished constitutional decisions have come about precisely because judges decide-consciously-to cast aside their predecessors' outmoded thinking, and place themselves on the constitutional frontier").
229. See STRAUSS, Supra note 1, at 85 (characterizing the Supreme Court's decision in Brown as an example of the "evolutionary, common law process" as opposed to "an isolated, pathbreaking act").
230. But Cf. Driver, Supra note 162 ("Living constitutionalism, properly conceived, must create significant leeway for judicial interpretations that deviate from even well-settled precedents.").
231. See Justin Driver, The Consensus Constitution, 89 TEXAS L. REV. 755, 794 (2011).
232. Solum, Supra note 4, at 186, 194.
233. See id. at 192-95.
234. Id. at 181
235. see also id. at 182 (noting that formalists "are keen on the plain meaning of legal texts precisely because this methodology provides the best mechanism for making the law accessible").
236. Id. at 184.
237. See Supra notes 153-60 and accompanying text.
238. See Supra section III(B)(2).
239. For a discussion of the independent effects of precedential continuity, see Supra Part II.
240. See, e.g., Dickerson v. United States, 530 U.S. 428, 443-44 (2000) (reaffirming Miranda on grounds including the fact that the warnings it requires had "become part of our national culture")
241. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992) (reaffirming Roe in part because "[a]n entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions");
242. Quill Corp. v. North Dakota, 504 U.S. 298, 317 (1992) (reaffirming Nat'l Bellas Hess, Inc. v. Dep't of Revenue, 386 U.S. 753 (1967), on grounds including the fact that its rule had "engendered substantial reliance and ha[d] become part of the basic framework of a sizeable industry").
243. See, e.g., Citizens United v. FEC, 558 U.S. 310, 365 (2010) ("No serious reliance interests are at stake.")
244. Lawrence v. Texas, 539 U.S. 558, 577 (2003) ("[T]here has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.")
245. Payne v. Tennessee, 501 U.S. 808, 828 (1991) ("Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases such as the present one involving procedural and evidentiary rules." (citations omitted)).
246. See Supra text accompanying note 8.
247. Compare Plessy v. Ferguson, 163 U.S. 537 (1896), with Quill Corp., 504 U.S. 298.
248. Casey, 505 U.S. at 855-56, 861-69.
249. See Strauss, Supra note 131, at 5 ("[T]he Court did not explain why mere [societal] disagreement, even persistent disagreement, is enough to justify rejecting the position about fetal life endorsed by a democratic majority.").
250. Casey, 505 U.S. at 852.
251. 558 U.S. 310 (2010).
252. Id. at 364.
253. Id. at 356.
254. See, e.g., FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 500 (2007) (Scalia, J., concurring in part and concurring in the judgment) ("This Court has not hesitated to overrule decisions offensive to the First Amendment ").
255. See Arizona V. Gant, 556 U.S. 332, 349 (2009) ("If it is clear that a practice is unlawful, individuals' interest in its discontinuance clearly outweighs any law enforcement 'entitlement' to its persistence.").
256. Dickerson v. United States, 530 U.S. 428, 444 (2000)
257. see also, e.g., Gant, 556 U.S. at 349 (arguing that "[c]ountless individuals... have had their constitutional right to the security of their private effects violated as a result" of a mistaken interpretation of the Fourth Amendment).
258. Patterson v. McClean Credit Union, 491 U.S. 164, 174 (1989) (quoting Runyon v. McCrary, 427 U.S. 160, 191 (1976) (Stevens, J., concurring) (quoting CARDOZO, supra note 76, at 150) (internal quotation marks omitted)). David Shapiro recently offered a theory of constitutional precedent that draws heavily on the Patterson language. See David L. Shapiro, The Role of Precedent in Constitutional Adjudication: An Introspection, 86 TEXAS L. REV. 929, 944 (2008) ("I would ask for a showing sufficient to persuade me that the precedent(s) constitute a significant obstacle to the pursuit of other important, recognized objectives or the vindication of basic rights.").
259. See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 852 (1989) ("[O]riginalism is not, and had perhaps never been, the sole method of constitutional exegesis.").
260. 554 U.S. 570 (2008).
261. See id. at 576 ("We turn first to the meaning of the Second Amendment.")
262. id. at 605 (describing the determination of "the public understanding of a legal text" as "a critical tool of constitutional interpretation" (emphasis omitted)).
263. But cf. id. at 625 (raising the possibility that principles of stare decisis may "foreclose[]" the Court's "adoption of the original understanding of the Second Amendment").
264. See, e.g., STRAUSS, Supra note 1, at 33 (arguing that "original understandings play a role only occasionally, and usually they are makeweights, or the Court admits that they are inconclusive")
265. Cf. Solum, Supra note 4, at 170 (describing the Court's attitude toward constitutional text as "ambivalent").
266. For influential treatments of the modalities of constitutional argumentation, see, for example, Richard H. Jr. Fallon, A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189 (1987)
267. PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982).
268. See, e.g., Daniel A. Farber, Legal Pragmatism and the Constitution, 72 MINN. L. REV. 1331, 1332 (1988) (describing pragmatism as a means of "solving legal problems using every tool that comes to hand, including precedent, tradition, legal text, and social policy")
269. Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. REV. 1, 9 (1998) ("[W]hile in one sense pragmatism is indeed a theory..., in an equally valid and more illuminating sense it is an avowal of skepticism about various kinds of theorizing ").
270. Farber, Supra note 191, at 1353.
271. Cf. Jonathan F. Mitchell, Stare Decisis and Constitutional Text, 110 MICH. L. REV. 1, 8 (2011) ("[M]any pragmatists acknowledge constitutional language only because it serves as a focal point, a convenient device that enables a diverse society to agree on what constitutes fundamental law.").
272. See, e.g., Coan, Supra note 101, at 1063 (arguing that it is "virtually incontrovertible that contemporary American constitutional practice has a substantially pluralist cast").
273. See Sunstein, Supra note 18, at 14 ("Not only has the Court as a whole refused to choose among [interpretive theories]..., but many of the current justices have refused to do so in their individual capacities.")
274. id. at 13 ("Even individual Supreme Court Justices can be hard to classify.")
275. Coan, Supra note 101, at 1063 (contending that the "defining characteristic [of interpretive pluralism] is the recognition of multiple authoritative sources of constitutional meaning").
276. Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 TEXAS L. REV. 1753, 1757 (1994).
277. See, for example, Richard Primus's impressive effort at articulating a theory to explain when original meanings should matter and when they should not: When Should Original Meanings Matter?, 107 MICH. L. REV. 165 (2008).
278. Cf. Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 827 (1982) ("[T]he Justices are not promoted from lower courts by a method that rewards conformity with prevailing norms; to the contrary, Presidents often appoint particular Justices because they value the new Justices' different perspective on legal affairs.").
279. See, e.g., Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2751 (2011) (Thomas, J., dissenting) ("The Court's decision today does not comport with the original public understanding of the First Amendment.")
280. Infra note 222.
281. See Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past, 78 IND. L.J. 73, 87 n.47 (2003) ("[T]he principle of 'every person for herself' with respect to choosing interpretive practices is now well entrenched.").
282. Mark Tushnet, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 1-4 (1988) (critiquing grand theory).
283. J. HARVIE III. WILKINSON, COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT TO SELF-GOVERNANCE 4 (2012). For Judge Wilkinson, the "highest virtues of judging" are found in overcoming theory and being guided instead by "selfdenial and restraint."
284. Id. at 116.
285. See generally Posner, Supra note 191.
286. Sunstein, Supra note 18, at 20-21
287. see also id. at 8 ("Courts should try to economize on moral disagreement by refusing to challenge other people's deeply held moral commitments when it is not necessary for them to do so.").
288. See Confirmation Hearing on the Nomination of John G. Jr Roberts. To Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 159 (2005) [hereinafter Roberts Confirmation Hearing] ("I have said I do not have an overarching judicial philosophy that I bring to every case, and I think that's true.")
289. GERHARDT, Supra note 25, at 193 ("John Roberts avoided controversy by rejecting fidelity to any particular theory of constitutional interpretation.").
290. Roberts Confirmation Hearing, Supra note 205, at 159
291. Cf. GERHARDT, Supra note 25, at 195 (describing Chief Justice Roberts as "signaling a preference to decide cases incrementally and to infer principles from the records of the cases below").
292. Roberts Confirmation Hearing, Supra note 205, at 158-59.
293. BALKIN, Supra note 103, at 6 ("If the text states a determinate rule, we must apply the rule because that is what the text offers us. If it states a standard, we must apply the standard. And if it states a general principle, we must apply the principle."). The affinity is highlighted by a separate statement from the Chief Justice noting that although "the Framers' intent is the guiding principle that should apply," judges must pay attention to whether the Framers "chose to use broader terms." Roberts Confirmation Hearing, supra note 205, at 182.
294. ("That is an originalist view because you're looking at the original intent as expressed in the words that they chose, and their intent was to use broad language, not to use narrow language.").
295. To be clear, I am not suggesting that the Chief Justice merely played the part of a theory skeptic for purposes of securing confirmation. To the contrary, I assume (and believe) that he candidly described his approach.
296. Roberts Confirmation Hearing, Supra note 205, at 159
297. see id. at 182 ("So the approaches do vary, and I don't have an overarching view.").
298. See The Nomination of Elena Kagan To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 81 (2010) ("I think in general judges should look to a variety of sources when they interpret the Constitution, and which take precedence in a particular case is really a kind of case-by-case thing.").
299. See Sunstein, Supra note 18, at 13-14 (noting that many Supreme Court Justices have not, in their individual capacities, adhered to a single theory of constitutional interpretation).
300. See Supra subpart IV(A).
301. See Supra subparts IV(B)-(C).
302. See Supra subpart IV(A).
303. See STEPHEN BREYER, MAKING OUR DEMOCRACY WORK: A JUDGE'S VIEW 75 (2010) ("[T]he Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.").
304. 163 U.S. 537 (1896).
305. BREYER, Supra note 216, at 150
306. id. at 150-51 ("[I]n Brown a unanimous Court overturned an earlier decision that the justices considered legally wrong, out of step with society and the law, and unusually harmful.").
307. Id. at 153.
308. See, e.g., McDonald v. City of Chi., 130 S. Ct. 3020, 3063 (2010) (Thomas, J., concurring in part and concurring in the judgment) ("[S]tare decisis is only an 'adjunct' of our duty as judges to decide by our best lights what the Constitution means.")
309. Morse v. Frederick, 551 U.S. 393, 410 (2007) (Thomas, J., concurring) ("I write separately to state my view that the standard set forth inTinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), is without basis in the Constitution.")
310. Van Orden V. Perry, 545 U.S. 677, 692-93 (2005) (Thomas, J., concurring) ("This case would be easy if the Court were willing to. return to the original meaning of the [Establishment] Clause.").
311. Cf. Vikram David Amar, Morse, School Speech, and Originalism, 42 U.C. DAVIS L. REV. 637, 647 (2009) (arguing that "Justice Thomas's is an originalism that consumes everything else, including stare decisis")
312. Tom Goldstein & Amy Howe, But How Will the People Know? Public Opinion As a Meager Influence in Shaping Contemporary Supreme Court Decision Making, 109 MICH. L. REV. 963, 973-74 (2011) ("[Justice Thomas] now regularly dissents, urging the Court to overrule prior lines of settled precedent. But those dissents are generally solo opinions, with no other member of the Court willing to chart such significant new directions in the law." (footnote omitted)).
313. ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 37-41 (1997)
314. see id. at 38 ("What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.").
315. See id. at 140 ("[S]tare decisis is not part of my originalist philosophy; it is a pragmatic exception to it.").
316. Scalia, Supra note 186, at 864
317. see also SCALIA, Supra note 222, at 138-39 ("Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.")
318. Cf. BORK, Supra note 54, at 158 ("[I]t is too late to overrule not only the decision legalizing paper money but also those decisions validating certain New Deal and Great Society programs pursuant to the congressional powers over commerce, taxation, and spending.")
319. Nelson Lund, Stare Decisis and Originalism: Judicial Disengagement from the Supreme Court's Errors, 19 GEO. MASON L. REV. 1029, 1041 (2012) (arguing that "[a]lmost all originalists have decided, on pragmatic grounds, that the Supreme Court's constitutional infidelities must sometimes be allowed to mature into de facto constitutional amendments").
320. BALKIN, Supra note 103, at 8-9.
321. See Randy E. Barnett, Scalia's Infidelity: A Critique of "Faint-Hearted" Originalism, 75 U. CIN. L. REV. 7, 24 (2006) (arguing that "Justice Scalia's faint-hearted commitment to originalism is not really originalism at all").
322. See Supra section III(B)(1). 228. See supra subpart IV(C).
323. See Paulsen, Supra note 116, at 295 ("For any constitutional theory that acknowledges the legitimacy of consideration of multiple and potentially inconsistent sources of constitutional meaning there is an urgent corollary need for coherent and principled rules about what takes priority and when one can repair to less-favored modalities to resolve unclarity.")
324. Adam M. Samaha, Low Stakes and Constitutional Interpretation, 13 U. PA. J. CONST. L. 305, 317 (2010) ("The constitutional pragmatist must choose goals before she can 'do what works' to achieve them, and a common law constitutionalist must choose normative commitments if she will test tradition against contemporary reason.").
325. Cf. Fisch, Supra note 36, at 100-01 (asserting that "[a] subsequent court's disagreement with a prior precedent is more likely to reflect a disagreement about the prior court's selection of decisional principles than the application of those principles").
326. For exploration of this point, see Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 TEXAS L. REV.1711 (2013).
327. For a comparable suggestion in the context of statutory stare decisis, see CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008) ("Principles of stare decisis... demand respect for precedent whether judicial methods of interpretation change or stay the same. Were that not so, those principles would fail to achieve the legal stability that they seek and upon which the rule of law depends.").
328. See Supra Part I.
329. Cf. District of Columbia v. Heller, 554 U.S. 570, 625 (2008) (emphasizing the "original understanding of the Second Amendment").
330. See STRAUSS, Supra note 1, at 52-53 (describing the nonoriginalist complexion of the Court's free speech jurisprudence).
331. See Supra subpart III(B).
332. See Supra notes 115-21 and accompanying text.
333. See Supra notes 129-34 and accompanying text.
334. See Supra subparts IV(B)-(C).
335. See Supra Part II.
336. Cf. Richard H. Jr Fallon., How To Choose a Constitutional Theory, 87 CALIF. L. REV. 535, 573 (1999) (declaring that "[f]or a judge or Justice to appeal to inconsistent assumptions [about preferred methods of reasoning] from one case to the next would breed cynicism" because "[t]he ideal of judicial reason, as distinct from power or will, implies an obligation of methodological integrity")
337. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 YALE L.J. 1750, 1767-68 (2010) (contending in the context of statutory interpretation that "[l]itigants bringing like claims expect to have their cases decided under the same legal standards, and methodological flip-flopping undermines the public perception of the Court as a neutral body").
338. See Supra notes 49-50 and accompanying text.
339. U.S. CONST. art. V.
340. See Supra Part II.
341. See Supra section II(A)(1).
342. See Sunstein, Supra note 18, at 21 (defending the use of shallow decisions that "make it possible for people to agree when agreement is necessary" while "mak[ing] it unnecessary for people to agree when agreement is impossible").
343. See Supra subpart IV(B).
344. See Supra subpart IV(D).
345. See Supra Part III.
346. Cf. Strang, Supra note 160, at 1730 ("[P]recedent plays such a central role in our legal practice that all plausible interpretative methodologies must account for the role of precedent in their theories.").
347. See, e.g., Breyer, Supra note 54, at 2016 ("[A] good opinion contains the true reasons that led to the judge's decision. The decision must be reasoned. It must be principled. It must be transparent.").
348. Cf. Gerhardt, Supra note 1, at 143 ("There can be no meaningful exchange of ideas among the Justices on the question of continued adherence to precedent unless they each disclose their reasons for the positions they have taken and the values they believe should continue to guide the Court's decisionmaking on the particular issue under reconsideration.").
349. SCALIA, Supra note 222, at 139
350. see also id. ("The whole function of the doctrine 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."). For a recent reaffirmation,
351. see SCALIA&GARNER, Supra note 51, at 414 ("[Stare decisis] is an exception to textualism (as it is to any theory of interpretation) born not of logic but of necessity.").
352. Paulsen, Supra note 116, at 290-91
353. see also Lawson, Supra note 32, at 32 (describing deference to erroneous constitutional precedents as inconsistent with "any theory of interpretation that prescribes objective right answers to constitutional questions" (footnote omitted)).
354. See Supra section III(A)(1).
355. See Kozel, Supra note 59.
356. See Supra section III(A)(1).
357. Cf. Caminker, Supra note 26, at 859 ("[A] court may appropriately interpret a particular constitutional provision to take into account the institutional values that commend embracing the same interpretation offered previously by (the same or) a superior court.").
358. Paulsen, Supra note 116, at 292.
359. See id. at 294-95 (challenging the argument that "judges have the power to invest the Constitution with meaning simply by virtue of their decisions and opinions").
360. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227 (1995) (noting that Article III creates "not a batch of unconnected courts, but a judicial department composed of 'inferior Courts' and 'one supreme Court'").
361. See Solum, Supra note 4, at 196 ("Once we are operating within the realm of formalist precedents, the question is not 'Are we respecting the authority of the Constitution?' but is instead, 'What is the institutional mechanism by which disputes about the meaning of the Constitution are to be settled?'")
362. see also Larry Alexander, Telepathic Law, 27 CONST. COMMENT. 139, 144 (2010) ("Originalists qua originalists have no position on the allocation of legal authority in any particular legal system."); Caminker, supra note 26, at 858 ("The entire federal judiciary could just as plausibly be the appropriate autonomous interpretive unit.").
363. See Supra section III(A)(1).
364. See Supra section III(B)(1).
365. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989) ("Considerations of stare decisis have special force in the area of statutory interpretation "). There are recognized exceptions for statutes that imply a delegation of lawmaking authority.
366. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007) ("Stare decisis is not as significant in this case... because the issue before us is the scope of the Sherman Act. From the beginning the Court has treated the Sherman Act as a common law statute." (citation omitted)).
367. See Patterson, 491 U.S. at 172-73 (observing that in the context of statutory interpretation, "unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done")
368. Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 GEO. WASH. L. REV. 317, 322-24 (2005) (summarizing the conventional arguments in favor of strong statutory stare decisis).
369. William, Jr. N. Eskridge, Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1403-08 (1988) (challenging the argument regarding legislative acquiescence).
370. Barrett, Supra note 266, at 336-37
371. Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177, 193-95 (1989).
372. Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 431 (1988) ("Precisely because constitutional rules establish governmental structures, because they are the framework for all political interactions, it ought to be harder to revise them than to change statutory rules. The reasons for making amendment hard apply as well to overrulings.")
373. Daniel A. Farber, The Rule of Law and the Law of Precedents, 90 MINN. L. REV. 1173, 1180 (2006) ("One purpose of having a written constitution is to create a stable framework for government Overruling [bedrock] doctrines would create just the kind of uncertainty and instability that constitutions (even more than other laws) are designed to avoid").
374. For further analysis, see generally Eskridge, Supra note 267.
375. See, e.g., Gluck, Supra note 241, at 1762-64 (contrasting textualist and purposivist approaches to statutory interpretation).
376. As noted earlier, debating about which of these approaches is best is not the type of project I am undertaking here.
377. See Supra Part III.
378. Patterson v. McLean Credit Union, 491 U.S. 164, 174 (1989) (quoting Runyon v. McCrary, 427 U.S. 160, 191 (1976) (Stevens, J., concurring) (quoting CARDOZO, supra note 76, at150) (internal quotation marks omitted)).
379. Waldron, Supra note 67, at 7.
380. STEPHEN W. HAWKING, A BRIEF HISTORY OF TIME 1 (1988).
381. See Supra Part II. See supra note 10 and accompanying text.