Originalism and stare decisis.

• Author: Markman, Stephen
• Position: Twenty-Ninth Annual Federalist Society National Student Symposium: Originalism

The extent to which originalism can be harmonized with precedent is an issue I have confronted regularly during my tenure as a justice on the Michigan Supreme Court. This article outlines several observations that have informed my thinking on this topic, drawn from my decade or so on that court. (1)

I view myself as an originalist judge, sometimes lapsing into self-descriptions as a "textualist," an "interpretivist," a believer in "original meaning," or even a "judicial conservative." Nuances of differences in these terms aside, I take seriously what I view as my obligation to give reasonable meaning to the language of the drafters of constitutions, statutes, contracts, and deeds. I have taken oaths to the United States Constitution and to the Michigan Constitution, and I take these oaths seriously. On the other hand, I have not taken an oath to abide by the judgments of my predecessors. Yet, on a number of occasions, I have sustained precedents I have disagreed with, and which did not, in my judgment, conform to the intentions of the lawmaker. Despite this, the primary criticism of my court during the eight years when I served with three other originalists as a majority of our seven-member court, was that we were insufficiently respectful of precedent. (2) Throughout my time on the court, I have approached my obligation to reconcile originalist jurisprudence with stare decisis through consideration of the following precepts.

First, the burden of proof rests with the party seeking to overturn precedent (3) because precedent reflects existing law and the status quo. Moreover, a judge is obligated to demonstrate some reasonable measure of institutional humility in the face of interpretations of the law that may have their pedigree in past judicial decisions, and which have withstood the scrutiny of ensuing generations of judges. (4) It is hubristic and injudicious to approach precedents in any other manner, if only because precedents are likely to assist a court in getting the law right. (5) Earlier decisions deserve deference, and to think otherwise--essentially to begin the analysis of each case de novo--is judicial solipsism. (6)

Second, an originalist understanding of the court's "judicial power" in Michigan--the only power that my court wields--reinforces these views. (7) Although dispute concerning the precise extent to which the judicial power encompasses a reasonable regard for precedent is possible, (8) based upon the historical evidence thoroughly amassed by Professors McGinnis and Rappaport, (9) such regard is implicit. There are approving references to precedent, for example, in the Federalist Papers when addressing the role of the judiciary, (10) and similar references can be found in cases interpreting the Michigan Constitution. At the federal level, certain forms of judicial self-restraint, such as the avoidance of "political questions," and the preconditions of standing and ripeness, are part of Article III's Case or Controversy Clause. (11) Although Michigan does not have an analogous clause, such constraints are fairly understood as a function of the judicial power, (12) as is the constraint of precedent, a practice so engrained in the judicial history of our state that early interpretive decisions by the Michigan Supreme Court routinely focused on the existence of relevant precedents. (13)

Third, a responsible court must not unnecessarily unsettle the law, or wreak chaos upon that law. (14) If there is any realm within which the values of stability, predictability, and continuity must be held in high regard, and in which such values should most certainly be maintained and preserved, it must be within the realm of our legal institutions, which define the rights and obligations of our citizens. Not only does regard for precedent serve these values, but by assuring that equivalently situated persons are treated in a reasonably equivalent manner, precedent also serves to promote the equal rule of law.

Fourth, a judge is obligated to recognize other historical constraints upon the exercise of the judicial power: to do "justice under law," (15) rather than a disembodied form of personal justice; to say what the law is, rather than what it ought to be; (16) to remain cognizant of the limited authority of the judge within our system of separated powers; and to adhere faithfully to proper methods so as to give meaning to the law. (17) To the extent that I view myself as an originalist, I attempt to bring these necessary principles to bear in my reading of the law. (18) I exercise exclusively the authority of my office, not a personal authority. Moreover, I take care to avoid the perpetual judicial temptations of either confusing my personal predilections with those of the law, or correcting or "improving" laws that are nonetheless compatible with the Constitution. (19) Judges are not the "adult supervisors" of our representative institutions, and I am not the last line of defense against what I might view as unwise or imprudent public policies chosen by "we the people" and their elected representatives. Lawyers exclusively serve on the bench in Michigan, not because lawyers are better able to organize society than are salesmen or truck drivers, not because lawyers have a more refined sense of right and wrong than tool-and-die makers or teachers, and not because lawyers have a more elevated conscience than accountants or hardware store owners. Instead, lawyers serve on the bench because they alone have been trained to read the law, and that is what they must restrict themselves to as judges.

Fifth, in confronting the parallel legal universes of originalism and stare decisis, an originalist judge may be legitimately susceptible to the criticism that he can be selectively originalist, committed to its precepts...