Originalism and precedent: principles and practices in the application of stare decisis.

AuthorDougherty, Richard J.


The proper understanding of the relationship between constitutional interpretation that is faithful to the text of the Constitution and the relative importance of precedent or stare decisis is a complicated matter, as the contributions to the recent symposium published in this journal indicate. (1) On the one hand, adherence to the structure and text of the Constitution would seem to argue in favor of strict attention to the document's words and phrases, unfettered by ancillary concerns about matters such as maintaining stability, reliance, and order in the court system. And yet, there are a host of reasons that could be put forward as to why the courts, and the Supreme Court specifically, should adhere to precedent--within reason. (2)

The argument in defense of "original intent" jurisprudence was brought into the public realm in a substantial way by Attorney General Edwin Meese during the 1980s, in response to what was taken to be an abandonment of both text and tradition by the Supreme Court. (3) The most notable public defender of original intent on the Court over the past two decades has been Justice Antonin Scalia, a position he has staked out in a plethora of opinions, but perhaps most elaborately in his 1997 work appearing in A Matter of Interpretation: Federal Courts and the Law, (4) and in his earlier William Howard Taft Lecture at the University of Cincinnati in 1989, Originalism: The Lesser Evil. (5) Justice Clarence Thomas has become a stalwart in defense of the approach, having authored in his time on the Court what have been called "perhaps the most uncompromising originalist opinions in decades." (6)

Yet the relative lack of influence of the originalist approach among contemporary judicial interpreters can be seen in a variety of ways, most notably by an examination of the general thrust of opinions over a period of decades. The result of this state of affairs can be seen in the fact that if a majority of the contemporary Supreme Court Justices were suddenly to begin to take originalism seriously, it could have significant consequences; as Henry Paul Monaghan argues, "insistence upon original intent as the only legitimate standard for judicial decisionmaking entails a massive repudiation of the present constitutional order." (7) And were such an approach to be adopted, one clear problem such a Court majority would face would be found in addressing how one deals with the immense assemblage of Court decisions over the decades that appear to have violated originalist principles.

Precedent is undoubtedly an important concern on the part of the Court, and of the legal and political community as a whole, (8) Questions are routinely raised in public discourse about the consistency between the letter of the law and its enforcement, while in the judicial appointment process one can surely count on nominees being asked about their willingness to abide by precedent, or--where the precedent is disfavored--their willingness to overturn earlier Court decisions. (9)

A variety of arguments are made in defense of reliance on precedent. Chief Justice Rehnquist, in the 1991 Paine v. Tennessee case, provided this rationale for precedent, and when to accept or reject it: "Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." (10) Thus, the Court, generally speaking, attempts to avoid overturning precedent, since adherence to it "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact." (11) In the absence of precedent, judges, attorneys, clients, legislators, and executives would all be in the position of supplying meaning to constitutional or statutory language in an ad hoc manner, attempting to divine what approach would pass muster when reviewed by subsequent interpretive bodies. (12) The degree of uncertainty that such a system would produce would likely leave even its most ardent advocates hard pressed to defend it as a system animated by the rule of law. (13)

And yet, while precedent is regarded by virtually all interpreters as an important factor in jurisprudence, it is not always rigorously adhered to, nor is it understood to be an infallible guide. As Justice Felix Frankfurter put it, "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." (14) The claim in favor of precedent is always going to be open to challenge, and it is unlikely that it will ever be passively embraced as if it were a fixed principle, the appeal to which required no justification.


    1. The Relative Authority of Stare Decisis

      In his A Matter of Interpretation exchange, Justice Scalia is assailed by some of his critics for his inconsistency, for while he supposedly follows the principles of original intent, he is willing to abandon those principles in favor of precedent in some areas. Indeed, Laurence Tribe suggests that at times Justice Scalia's willingness to put his stamp of approval on precedent marks him as an aspirationist, a fellow traveler of the non-originalist who looks beyond the text for workable and desirable judicial conclusions. (15) Justice Scalia's rejection of Tribe's attribution is grounded in his analysis of the relative importance of factors other than originalism: "As I have explained, stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it." (16) The examples that Tribe cites of Justice Scalia's apparent abandonment of originalism are his votes in the Texas v. Johnson (17) flag-burning case, the cross-burning at issue in R.A.V. v. City of St. Paul, (18) and the ritualistic animal slaughtering addressed in Church of the Lukumi Babalu Ave v. City of Hialeah. (19) Justice Scalia's defense of his votes in these cases is to acknowledge that they were not animated by adherence to originalism. Rather, he notes: "All three of the examples [Tribe] selects involve the First Amendment, for which the Court has developed long-standing and well-accepted principles (not out of accord with the general practices of our people, whether or not they were constitutionally required as an original matter) that are effectively irreversible." (20) Justice Scalia's defense of what Tribe takes to be non-originalism, then, is that every theory of interpretation must, in practice, deal with the phenomenon of precedent, and that the virtue of originalism is found not so much in the way in which it grapples with the question of precedent--"old principles"--but in its contribution to the "rejection of usurpatious new ones." (21) The acceptance of stare decisis, Justice Scalia argues, is a compromise for any theory as it requires accepting an interpretation as "true" while recognizing that it is not; after all, if the precedent is rightly anchored, there is no need to rely on stare decisis as the Court can simply follow constitutionally established principles. (22)

      A further example of Justice Scalia's approach to precedent can be found in his dissent in the challenge to the presidential line-item veto in Clinton v. City of New York. (23) Here he distinguished between the original intent and quite long-standing practice, from the time of the early republic on: "It was certainly arguable, as an original matter, that Art. I, [section] 7, also prevents the President from canceling a law which itself authorizes the President to cancel it. But as the Court acknowledges, that argument has long since been made and rejected." (24) The majority opinion, signed on to by Justice Thomas and Chief Justice Rehnquist, saw the issue differently, and did not acknowledge the line-item veto as of a piece with earlier discretionary spending power. (25) Here Justice Scalia was operating on the principle that there is a harmony between this case and well-established precedent, a principle the majority did not accept.

      This analysis compels us to return to the question addressed at the outset--when should precedent be followed, or when might one abandon precedent in light of the search for a conclusion more closely tracking the original design of the Constitution? Among the most famous articulations of this question is the one forwarded by President Abraham Lincoln, in his First Inaugural Address. (26) President Lincoln made clear that he would in fact abide by the decision of the Supreme Court in Dred Scott v. Sandford, (27) and that it is incumbent upon the executive to enforce the Court's ruling:

      I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all parallel [sic] cases, by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. (28) Yet after articulating this position, President Lincoln then noted that he might not be compelled to acknowledge the authority of the principle or argument proffered by the Court, but that doing so would turn on the persuasiveness of the argument:

      At the same time the candid citizen must...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT