Friday, October 23, 2015

Stare Decisis and Originalism

by Michael Dorf

I taught Brown v. Board of Education to my 1L Con Law class yesterday and part of our discussion was jurisprudential: What methodology does the Court use? What weight, if any, does the Court give to the original understanding of the Fourteenth Amendment? What was the original understanding? Etc. Here I want to use that opening to register a criticism of one particular sort of argument that self-styled originalists sometimes make about Brown and about the relation between stare decisis and originalism more generally.

A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper. We can disagree over how many such decisions there are but if there is anything on the list, it's Brown. As Steve Sachs argues in an insightful paper defending a (very modest) version of originalism, Brown might be said to be right simply “because Brown." Yet, Brown is at least a prima facie problem for originalists because the framers and ratifiers of the Fourteenth Amendment appeared to accept de jure segregation. Originalists have developed a variety of strategies to resist the conclusion that Brown discredits originalism.

The boldest effort is Michael McConnell's argument (in a 1995 Virginia Law Review article that does not appear to be linkable on any free site) that in fact the Reconstruction Congress did intend to abolish de jure segregation. Steven Calabresi and Michael Peri make a similar argument, relying on a view about the Privileges or Immunities Clause. If these sorts of arguments succeed, then there is no conflict. To my knowledge, most historians believe these arguments fail, at least if meant to tell us anything about the concrete intentions and expectations of the framers and ratifiers.

A more common move among originalists distinguishes between concrete intentions and expectations, on the one hand, and original public meaning, on the other. Contemporary "semantic originalists" read the Fourteenth Amendment's language at a hig level of generality and then say either that the semantic meaning itself entails Brown or that the semantic meaning is consistent with Brown, which could be justified as a matter of judicial construction (a kind of filling in or fleshing out) rather than at the level of interpretation (which is a matter of meaning). As I and others have noted before (e.g., here), the move from concrete intentions and expectations to semantic meaning sacrifices most of what made originalism distinctive. Ronald Dworkin was a semantic meaning originalist by current standards. Jack Balkin argues that semantic originalism is consistent with living Constitutionalism. I don't especially like the idea of calling this broad approach to interpretation and construction any kind of "originalism" mostly because I don't like the opportunity for a bait-and-switch. The theory justifies originalism-in-name-only but then the judges in fact deploy old-school-concrete-intentions-and-expectations to delegitmate living Constitutionalism.

Originalists who do not think that Brown or other sacrosanct precedents can be justified using originalism, however defined, sometimes rely on stare decisis. There is a robust debate about how and whether this works. Justice Scalia has said it doesn't have to be justified, because stare decisis is an add-on to any first-order interpretive program. Henry Monaghan has asked whether a stare decisis that is justified on pragmatic grounds opens the door to other pragmatic grounds for nonoriginalist decision making. John McGinnis and Michael Rappaport have argued that stare decisis can be justified to sustain nonoriginalist precedents insofar as stare decisis comports with "original methods originalism," i.e., so long as the original understanding allowed for stare decisis.

I'm not now going to defend a position on any of these approaches. Instead, I want to offer a critique of one particular argument. So, let's assume the following:

(1) Brown and/or some other sacrosanct precedents cannot be justified by first-order originalist methods, whatever the particular originalist thinks those methods are.


(2) Brown and/or the other precedents can, however, be preserved via stare decisis, which is permissible on one or more of the grounds discussed above.

Does it therefore follow that the originalist has answered the challenge posed by Brown and/or the other sacrosanct precedents? Originalists who labor to reconcile stare decisis with originalism appear to assume that the answer is yes. I think they're wrong. In particular, I think they misconceive the challenge that Brown and/or the other sacrosanct precedents pose.

The problem for originalism is not that adoption of originalism would result in the reinstatement of Jim Crow. The very sacrosanctity of Brown reflects the fact that--despite ongoing racial inequality across multiple dimensions--no serious figure in American public life advocates a return to Jim Crow.

The problem that Brown and/or other sacrosanct precedents pose is not one of preserving those precedents but of failing a test. The process of deciding upon the "correct" interpretive methodology proceeds, like many intellectual tasks, via a reasoning process that goes back and forth between general principles and concrete applications until one reaches reflective equilibrium. But if Brown and/or some other precedents are right "because Brown" and/or "because X, Y, and/or Z," that means that any interpretive approach that is acceptable must actually produce Brown and/or the other precedents. Preserving sacrosanct precedents is not enough. Indeed, it's not the point of the exercise at all.

Consider an analogy. Suppose I'm trying to decide which of two builders to hire to build a house: Stubbs or O'Reilly. Each of them shows me several houses he has previously built. The Stubbs houses are high quality but the O'Reilly houses are falling down. O'Reilly nonetheless wants me to hire him. I'm skeptical because I see what lousy work he has done in the past. He tells me not to worry because he himself lives in a high-quality house that Stubbs built. O'Reilly is proud of the fact that he hasn't destroyed the excellent house Stubbs built. But I'd be a fool to hire O'Reilly because the capacity not to destroy an excellent house is not a predictor of the ability to build an excellent house.

Originalism supplemented by stare decisis is like O'Reilly.


Greg said...

There's something Fawlty about that last paragraph... despite the sound reasoning. :)

Shag from Brookline said...

Greg, like in "Fawlty Towers"?

Perhaps a revision of the last sentence of Mike's penultimate [still my favorite word] paragraph might be helpful:

"But I'd be a fool to rely on originalism because the capacity not to destroy a sacrosanct decision (such as Brown) is not a predictor of the ability of originalism to accept/adopt another sacrosanct decision."

I'm reminded of Fox's Bill O'Reilly's "history." Yes, oh really.

Efforts of originalism to firm up its foundations with Brown results in significant cracks in the edifice of originalism in the "manor" of a really faulty tower.

Joe said...

Just don't bring up the war!!! Manuel!


A reply here would be "as compared to what" and people will bring up Roe v. Wade, e.g., (or Obergefell v. Hodges?) to show the problems with the past work of an alternative technique. I don't think the two examples bad myself, but others do.

I do think past work is a way to judge the value of a technique but figure there will tend to be bad cases. You have to look at things as a whole especially if there is a way to kinda force the round peg into the square hole even there.

But, as a whole, originalism (as usually defined -- the Prof. Balkin type to many is cheating) doesn't hold up. It isn't just Brown & Brown alone as you suggest doesn't do them any favors.

Lawrence Solum said...

I have posted some extended comments on Mike's excellent and thought-provoking post on Legal Theory Blog. Here is the link:

Shag from Brookline said...

Larry Solum is one of the architects of the New Originalism with its Interpretation/Construction motif. The "Construction" part is strongly objected to by the "Ols Originalists" such as Rappaport and McGinnis. The internecine squabble in the originalism community has yet to be resolved. But the "Construction" portion of the "New Originalism" has a foundational problem that its architects need to address. I look forward to Mike's take on Solum's 3 Qs. But I have a Q for Solum:

Does the fixation thesis apply to the New Originalism's "Construction"?

Michael C. Dorf said...

Thanks much to Larry for his interesting questions. They deserve some serious thought. I shall try to answer as best I can on Monday.

Unknown said...

I was under the impression originalism applied to the 14th amendment would have had Plessy decided like Brown, no? At least the Plessy dissent suggests that I thought.

Asher Steinberg said...

I posted some thoughts on this post at:

Joe said...

"I was under the impression originalism applied to the 14th amendment would have had Plessy decided like Brown, no? At least the Plessy dissent suggests that I thought."

Hard to tell what originalism would have resulted here since you'd have to determine what originalism requires and there is a of debate there.

Anyway, Justice Harlan never to my understanding actually said that segregation in public school education was unconstitutional. He actually wrote an opinion, Cumming v. Richmond County Board of Education, accepting having a high school for white children but not black children. And, though he felt denying a private college from being integrated was unconstitutional (dissenting in BEREA COLLEGE v. COM. OF KENTUCKY), he was sure to add a caveat ("Of course, what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense.")

He appears to have treated public accommodations like trains and hotels differently than education. Harlan also joined an opinion that treated interracial sexual relationships differently, so very well might not have deemed the result of Loving v. Virginia to be compelled.

Greg said...

I find all of these arguments to be quite interesting. Asher Steinberg makes a reasonable argument that Brown is so radical of a decision that requiring a method of interpretation to reach that result really (at least in 1954) isn't fair.

So, I'll propose a different test:

A method of constitutional interpretation is flawed if, correctly applied in 1954, without relying on the guidance of Plessy v. Ferguson, it would most likely fail to find for Briggs in Briggs v. Elliott.

It is not clear to me that originalism even passes this disturbingly low bar. Did the original writers of the 14th amendment really believe that equal quality of public education would be included in the equal protection clause?

In contrast, textualism (a method of interpretation with its own flaws) seems quite likely to find for Briggs, since "equal protection of the laws" really could include equal quality of public education.

Eric Segall said...

This was a smart piece Mike, sorry I am late to reading it (been preoccupied elsewhere) :). I will say that I think Posner might have a sound theory of precedent. The only time judges should affirm a "bad" or "wrong" decision (not talking about vertical precedent which he of course believes in) is when there are significant reliance interests at stake. One advantage of this theory is that it accurately describes Supreme Court practice if one takes into account implied overrulings.

I think Posner's views also supports your excellent essay.

Eric Segall said...

Sorry for the error, support.