Text vs. precedent in constitutional law.

• Author: Calabresi, Steven G.

Conservative constitutional law scholarship is divided into two camps. First, there are the originalists and textualists like myself, Randy Barnett, John Harrison, Gary Lawson, Judge Michael McConnell, Michael Stokes Paulsen, Saikrishna Prakash, and, at times, Akhil Amar. This camp believes that the text of the Constitution, as it was originally understood, is controlling in most constitutional cases. Second, there are the followers of Supreme Court precedent, who sometimes argue incorrectly that they are Burkeans. (1) The latter group includes Charles Fried, Thomas Merrill, Ernie Young, and, in some respects, Richard Fallon. These scholars all follow the doctrine over the document and believe in a fairly robust theory of stare decisis in constitutional law. (2) The key case in recent times about which the textualists and the doctrinalists have dashed is Planned Parenthood of Southeastern Pennsylvania v. Casey. (3)

The argument in this Essay is that the doctrinalists are wrong in arguing for a strong theory of stare decisis for three reasons. First, there is nothing in the text, history, or original meaning of the Constitution that supports the doctrinalists' strong theory of stare decisis. Second, the actual practice of the U.S. Supreme Court is to not follow precedent, especially in important cases. In other words, precedent itself counsels against following precedent. And, third, a strong theory of stare decisis is a bad idea for policy reasons. Each of these three arguments is taken up in turn below.

1. TEXTUALIST AND ORIGINALIST ARGUMENTS

   Both textualism and originalism supply arguments as to why following precedent is wrong. As for the text, it is striking that there is not a word in the Constitution that says in any way that precedent trumps the text. Article V specifically sets forth a procedure by which the constitutional text can be changed through the amendment process. (4) Amendment is the only process the constitutional text provides for making changes in the document. Five-to-four or even nine-to-zero Supreme Court decisions do not trump the text. Moreover, in the Supremacy Clause, the document says that the Constitution, laws, and treaties shall be the "supreme Law of the Land," (5) but makes no mention of Supreme Court decisions. It is clear that under the text of the Constitution the Supreme Court has no power to follow its own decisions when they conflict with the text. Moreover, the Supremacy Clause makes this Constitution the supreme law of the land, and this Constitution is the one that we know was submitted for ratification under Article VII. The text, then, simply does not support a strong theory of stare decisis.

   The original history of the Constitution leads to the same conclusion. Records from the Philadelphia Convention and of the ratification debates do not mention anywhere a power of the Supreme Court to follow precedent over constitutional text. (6) Had such a power been contemplated, surely it would have been discussed and debated during the heated and close fight over ratification of the Constitution. Alexander Hamilton does mention in Federalist No. 78 that the courts might sometimes be bound by precedents, but he does not assert a power to follow precedent where it plainly conflicts with the text. (7) At most, Hamilton's comment and a few other early comments like it suggest a power to follow past interpretations of the constitutional text which are plausible and not in contradiction to the text. (8) No one in the Framing generation, not even the most committed Anti-Federalists, imagined a doctrine of stare decisis trumping the constitutional text of the kind the Justices found in Casey. (9)

   Moreover, early practice under the Constitution shows that the Framers themselves did not follow a strict theory of stare decisis on the most significant constitutional issue of their day--the constitutionality of the Bank of the United States. It is worth rehearsing quickly the history of the debate over the constitutionality of the Bank during the first forty years of the Republic. The Bank of the United States was created in 1791 on the recommendation of Alexander Hamilton. Almost two-thirds of the members of the first House of Representatives and all of the first Senate thought the Bank was constitutional, (10) which is significant because the First Congress was full of delegates to the Philadelphia Convention and the First Congress's decisions thus have always been thought to be especially probative of constitutional meaning. The bill establishing the Bank was signed into law by President George Washington, who had presided over the Philadelphia Convention and without whose support the Constitution would never have been ratified. Washington signed the Bank bill even though his Secretary of State and Attorney General advised him that the bill was unconstitutional.

   The question of the constitutionality of the Bank would continue to be debated from when it was first enacted in 1791 until the 1830s. Throughout that period, most of the people who commented on the matter did not think that the question of the constitutionality of the Bank was settled by the first Congress and President Washington having participated in its creation. The Bank was allowed to lapse in 1811 after its twenty-year charter expired, and members of Congress continued to debate its constitutionality. A bill renewing the Bank was ultimately passed by Congress shortly after the War of 1812, and President James Madison signed it into law in 1816, (11) which was significant for several reasons. First, Madison is often called the Father of the Constitution because of the important role he played at the Philadelphia Convention and as an author of the Federalist Papers. Second, Madison had said in Congress when the First Bank was approved that he thought the Bank was unconstitutional as a matter of original meaning. (12) Third, Madison ultimately let the Second Bank become law because he felt that practice and precedent had settled matters in favor of the Bank's constitutionality. Strikingly, Madison's conclusion on the importance of precedent was to be decisively rejected.

   The question of the constitutionality of the Bank finally reached the Supreme Court in 1819 in McCulloch v. Maryland. (13) Chief Justice Marshall could easily have said in McCulloch that the question of the constitutionality of the Bank had been settled by twenty-eight years of practice and precedent. The Supreme Court had said something similar in Stuart v. Laird, (14) where the Court relied on precedent. Instead, Chief Justice Marshall reviewed the question de novo, making a number of famous textualist, structural, and originalist arguments. Chief Justice Marshall treated the constitutionality of the Bank as an open...