Welcome to Iran: A defense of precedent in constitutional law

Andrew Koppelman

I recently debated my Northwestern colleague and friend, Steven Calabresi, on the topic of precedent in constitutional law. Below are my remarks.

Should precedent be part of constitutional law? This is a surprising question, since it is such a well entrenched part of our practice. Precedent is most of what we teach and study in our Constitutional Law classes. It dominates treatises on the subject. Asking whether we ought to be doing this has an air of unreality, like asking whether we ought to be using our feet to transport our bodies from one place to another. The proposal to discard it also has too many destructive implications to enumerate them all here. I’ll focus on its effect on a single question: the powers of the federal government.

So let’s start by noticing some aspects of reality. Modern industrial economies involve a vast and complex web of transactions, with equally complex effects. Those effects require an equally complex pattern of regulation. Consumers rely on government to regulate the quality of many of the goods and services they are sold – to guarantee that the medicines they buy are safe and effective, that their cars will not explode on impact, and that the meat they purchase in the supermarket is not tainted. Transactions often have external effects on nonparties, notably pollution. There is a wide array of well-known types of market failure, such as collective action and holdout problems. Unregulated economies are also subject to catastrophic cycles of boom and bust, which modern central bankers have learned to moderate. In every advanced industrialized country, there is a huge regulatory apparatus that addresses these problems. Unemployment and welfare benefits are provided; health, education, labor relations, and the environment are regulated; civil rights are protected. Nowhere does government have the modest economic role it had 200 years ago.

The United States, however, has a unique problem, arising out of our Constitution.

Article I of the Constitution gives Congress limited, enumerated powers. Among these is the power “to regulate Commerce . . . among the several States.” The Constitution does not explain what that means. For more than a century, the Supreme Court has adopted ever-broader interpretations of the Commerce Power, upholding on this basis the New Deal legislation of the 1930s and the Civil Rights Act of 1964. There is a logic to this: nearly all human activity affects interstate commerce in some way. But in 1995, the Rehnquist Court began to strike down federal laws as exceeding Congress’s powers, and it is continuing down this path.

There are two reasons why courts have been drawn to expansive readings of federal power that stretch the literal meaning of the text. The first, as I just noted, is the press of necessity in a modern economy. The other is that the Constitution is extremely difficult to amend. Even Franklin Roosevelt, with his huge supermajorities in the 1930s, thought it too much trouble to try.

The commerce power aside, the federal government now exercises many powers that the framers did not contemplate. Even the most dedicated originalists don’t propose doing away with all these powers. Most notable is the power to print paper money. The Constitution does not authorize paper money, and the framers were pretty clearly opposed to any such power. Time has proven them wrong. A judicial decision taking away that power would bring about one of the worst economic catastrophes in the history of the human species, whose destructive reverberations would be felt everywhere on the planet. Any judicial philosophy that regards this as a hard case should be regarded as lunatic on that basis alone, somewhat like a mother bemusedly deliberating on whether it would be a good idea to cut her children’s throats.

The framers of the Constitution had no intentions at all with respect to problems that they did not and could not foresee. The most pertinent such intention was the resolution of the 1789 Philadelphia Constitutional Convention that Congress should be able to legislate in all cases “to which the states are separately incompetent, or . . . in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” This was later revised, by a “Committee of Detail,” to become the present Article I, but no one seems to have thought that they were changing the substance of Congress’s powers, and the revision was accepted by the Convention without discussion. While the framers meant for there to be some limits on Congress’s power, they did not mean to incapacitate it to deal with real problems.

Fortunately, we’re not bound by the framers’ lack of foresight. Contemporary constitutional interpretation treats original intent as one, but only one, source of law. Constitutional arguments, as Philip Bobbitt has shown us, draw on text, original intent, the constitutional structure, precedent, ethical considerations, and prudence. In existing practice, there is no clear order of rank among these sources of law. Well-settled practices can trump original intent and even text on occasion. The so-called originalists on the present Supreme Court, Justices Scalia and Thomas (and the late Chief Justice Rehnquist), sometimes act consistently with this view. For instance, they have invoked the precedents surrounding the Eleventh Amendment to stretch that provision’s ban far beyond its plain text.

The constitutional philosophy of originalism is a radical challenge to the conventional view. It proposes to discard every source of law other than text, as filtered through the original meaning. This promises to reduce the judicial discretion that is created when judges are called upon to balance all these considerations in this mushy way.

I’ve already noticed that, in the Eleventh Amendment context, the originalists do not follow this method at all. Another example is affirmative action; all the originalist evidence we have indicates that the framers of the Fourteenth Amendment had no objection to racial classification. Their response to these difficulties has been to maintain a delicate silence about them. Do you really think it’s coincidental that originalist methods in these cases would reach results these judges find politically unwelcome? So the first thing to notice about originalism is that its leading judicial proponents don’t really believe this stuff themselves.

There are, however, serious and thoughtful proponents of originalism in the academy, and it is to them that I will now respond.

It is reasonable to ask why precedent should ever have any weight in constitutional decisionmaking. When we interpret a Constitution, aren’t we just supposed to be following the text? And isn’t a text supposed to mean what it meant when it was written?

One answer looks to the source of authority of any law. The laws of every regime on the planet have authority only because they are embedded in a practice of legal behavior that assigns them weight. Therefore, no law – not the written constitution, nor any other source of law – can claim more weight than existing practice assigns it. In particular, the source of law that gets its legitimacy from a practice, here the practice of American Constitutional Law, cannot itself be a reason for challenging that practice.

One might respond that the Constitution gets its authority, not from any existing practice, but from the ratification by We the People in 1789. But perhaps you’ll have noticed that all of the original ratifiers are dead. If the Constitution has continuing authority, it’s because the present generation chooses to give it that authority. And our continuing deference is not given only to the text, but to the whole set of practices that surround that text. Including precedent.

There’s a second, related but distinct, reason for following precedent. This reason draws from the writings of the founder of modern conservatism, Edmund Burke. Burke developed his views in response to the French Revolution, which proposed to trash all the old institutions of the monarchy. The institutions we have inherited, Burke observed, are fragile, the product of years of evolution, and not easily replaced. No one is wise enough to craft a polity from the ground up. Societies evolve, sometimes in strange ways, but the strangeness is not a reason to disturb a status quo whose value we can only dimly apprehend. The twentieth century’s disastrous experiments with socialism have vindicated, as much as anything could, Burke’s warning that “very plausible schemes, with very pleasing commencements, have often shameful and lamentable conclusions.” Unintended consequences are the rule rather than the exception in policymaking.

Burke’s warnings seem relevant to proposals, strangely labeled “conservative,” to discard large elements of the modern administrative state in the name of original intent. I set aside the very large question of whether the original intent is even knowable. It is a delicate question whether framers who envisioned a modest role for the federal government would have retained that view if they took account of the needs of a modern industrial economy. I will note that they did understand their limitations. Two centuries ago, Chief Justice Marshall warned against an “unwise” interpretation of the Constitution that would “provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.”

The most radical originalist on the Court is Justice Thomas. In his concurring opinion in United States v. Lopez, he proposed to revive the rule, dead since the 1930s, that Congress could regulate trade but not production, so that manufacturing, mining, and agriculture would be beyond the scope of federal regulation. The result would be a the biggest upheaval in the history of American government, requiring the destruction of large parts of the federal government and the adoption of a less regulated economy than exists anywhere else in the advanced industrial world. But then Thomas hesitated, and on Burkean grounds. He conceded in a footnote that “Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.” But this does not stop him from wanting to revive the trade/manufacturing distinction. It just means that he may not be willing to go all the way back to 1789.

What is going to restrain him? And when will he be restrained? Which “stare decisis and reliance interests” will suffice to keep which parts of the federal government from going under the axe? Text and original intent are no help here. Justice Thomas will have to decide for himself which of the hundreds of existing institutions he will allow to survive, evidently with nothing to rely on but his own political judgment.

In Thomas’s world, the elected government will be permitted only to do those things that are acceptable to an elite group of scholars, schooled in ancient lore mysterious to most citizens, who have a veto over what the legislature can do. (After Bush v. Gore, they also have taken unto themselves a veto over who can assume elected office in the first place.) The United States will be part of the modern world only to the extent that these unelected clerics permit it.

This is not America. This is Iran.

This kind of oligarchy can coherently be justified if you think that the clerics have a direct line to the will of God, to whom elected officials are obligated to defer. But of all the reasons that might be offered for taking us there, there is something heroically daffy, a kind of willful mortification of the intellect, in the reasons we are in fact being given: that it is necessary in order to protect democracy and constrain judicial discretion.