Balkinization  

Friday, May 11, 2007

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.


Comments:

I am no originalist, but it seems to me that Thomas' position isn't absurd at all. "Commerce among the several states" clearly means transactions between someone in one state and someone in another state, not activity that occurs within one state. Otherwise, the commerce clause doesn't limit federal power at all. Manufacturing is clearly an activity that usually occurs only within one state. Thus, the distinction is clearly a correct interpretation of the commerce clause.

Thomas, however, is actually mindful of exactly what you say-- that there's a huge body of precedent out there that has allowed Congress and the federal government to enact all sorts of statutes and regulations of manufacturing. So he's not saying he will overturn all that. But he sees no need to expand it any further, given that the federal government is not supposed to be able to regulate intrastate manufacture.

Seems to me that he's respecting precedent AND plausibly interpreting the Constitution.

In my view, the Justices who are open to criticism with respect to the Commerce Clause are those who pretend it has no meaning at all as a limit on federal power and endorse the view, that, for instance, it extends to someone's cultivation of a sprig of marijuana in his or her own backyard for medical use.
 

Professor Koppelman:

I would suggest that your Iran analogy should be reversed.

We are supposedly a nation of laws and not men in stark contrast to authoritarian regimes like Iran. Iranian courts impose the policy preferences of the members of its theocracy over the law. In contrast, our courts are supposed to follow the law including the Constitution rather than imposing their own policy preferences.

Justice Thomas is the antithesis of an Iranian authoritarian because he is enforcing the Constitution rather than imposing his own policy preferences. If I could only say the same about many of his colleagues on the Court.

If the rule of men over law cannot be justified, why should we grant any authority to precedent which was itself a violation of the law?

It is highly debatable whether the restrictions on the power of Congress such as the Commerce Clause are incompatible with a modern economy. What is not arguable is the Constitution is incompatible with the modern leviathan government bureaucracy. A very strong case could be made that the modern economy could benefit greatly if the Constitution was allowed against to reign in the reach of government power.
 

"The other is that the Constitution is extremely difficult to amend."

Bank vaults are extremely difficult to open if you don't have the combination, but that doesn't justify safecracking. FDR didn't circumvent Article V because amending is "difficult", he did it because the states, which are ENTITLED to have a say as to whether amendments are adopted, would have rejected the amendments he wanted.

It's no different from prosecutors abolishing trial by jury because getting a jury to convict is extremely difficult. Police abolishing search warrants because it's extremely difficult to get judges to issue them.

It was a usurpation of power, plain and simple.
 

"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."

As Prof. Balkin's reply notes, I don't think that Bobbitt's approach is the only way to allow for framer error or framer ignorance. If we see constitutional outcomes as the result of plugging the actual world into a textually-expressed constitutional intension (function from possible worlds to outcomes), then the framers' ignorance of the facts of the world, or error about it, may mean that they are ignorant of, or wrong about, constitutional outcomes.

As Justice Sutherland put it in Euclid v. Abler Realty, "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

For more, see here, with a detailed response to Fallon's Bobbitt-like approach. The basic idea is that assessments of reference by either the framers or later interpreters should get deference only to the extent that they (a) properly grasp the sense historically expressed by the text, and (b) properly assess the reference-yielding facts.
 

"Bart" DePalma, as usual, misses the obvious point:

We are supposedly a nation of laws and not men in stark contrast to authoritarian regimes like Iran.

As Prof. Koppelman pointed out, but which seems to have passed 40,000 feet above "Bart"'s head, "originalists" (and presumably "Bart") would like to replace "judges who tell us what the law is" with ... wait for it ... "judges who tell us what a bunch of people dead for two centuries would have told us the law is". Quite the improvement, I'd say. Unless our scientists master the art of resurrection, you can't get away from the fact that some judges are going to have to make some decisions on things that are in dispute. Of course, "Bart" wants them to make the decisions that he, in his considered judgement, thinks they should make, and pretend that this was an outcome cast in stone by the unambiguous and precise language of those long dead. Yet, dear "Bart" is one of those that says that the Eleventh Amendment says precisely that which it doesn't say (see also above in that thread).

Cheers,
 

"Bart" DePalma:

A very strong case could be made that the modern economy could benefit greatly if the Constitution was allowed against to reign in the reach of government power.

Perhaps. I haven't seen one yet, and Prof. Koppelman pointed out several reasons why such would be a hard case to make. But I suspect that such a "strong case" would be rather unlikely from someone with such a poor facility for English.

Cheers,
 

Brett:

Police abolishing search warrants because it's extremely difficult to get judges to issue them.

Oh. So you're opposed to Dubya's illegal "Terrorist Surveillance Program".... Welcome aboard!

Cheers,
 

Lots of federations in "modern economies" have limits on central power to regulate economic matters. Canada or the EU come to mind. Moreover, the US had a modern economy before the 1930s.

The idea that your political preference (unlimited power for the federal government) is dictated by "modernity" is what is undefended.
 

Koppelman ignores the benefits of decentralization of decision-making (Tiebout sorting and greater voice.)

The idea that any Supreme Court is going to prohibit the federal government from regulating interstate externalities is pure bogeyman.
 

Arne Langsetmo said...

"Bart" DePalma, as usual, misses the obvious point: We are supposedly a nation of laws and not men in stark contrast to authoritarian regimes like Iran.

As Prof. Koppelman pointed out, but which seems to have passed 40,000 feet above "Bart"'s head, "originalists" (and presumably "Bart") would like to replace "judges who tell us what the law is" with ... wait for it ... "judges who tell us what a bunch of people dead for two centuries would have told us the law is".


As I have posted several times previously, I am a textualist. The Constitution means what it says. No more, no less.

An "originalist," as you and Professor Koppelman are using the term, looks beyond the text for the "original intent" of those who drafted and ratified the Constitution. I share Justice Scalia's doubts about this approach. I would generally limit my historical research to determining what the words and phrases of the Constitution meant when the document was enacted, much the way you would engage in contractual interpretation.

That being said, original intent can be useful in filling in the blanks when the constitutional language is vague. This is similar to using parol evidence to interpret vague contractual provisions.

Because original intent is based on actual historical record, such an effort is far more objective and honest than a judge simply inserting in his or her own personal policy preferences in the name of a "living Constitution." Therefore, I would disagree with Professor Koppelman's comparison which you cited.
 

"Bart" DePalma:

[Arne]: "Bart" DePalma, as usual, misses the obvious point: We are supposedly a nation of laws and not men in stark contrast to authoritarian regimes like Iran.

[Arne]: As Prof. Koppelman pointed out, but which seems to have passed 40,000 feet above "Bart"'s head, "originalists" (and presumably "Bart") would like to replace "judges who tell us what the law is" with ... wait for it ... "judges who tell us what a bunch of people dead for two centuries would have told us the law is".

As I have posted several times previously, I am a textualist. The Constitution means what it says. No more, no less.


So then we can have a computer go parse the briefs, find the appropriate clause in the Constitution (and/or statutes), and come to a decision. A big grey box with two lights on top; one green and one red. "If it's red, you're dead" kind of thing.... In fact, no need for more than the two lights, because no explanation of the "reasoning" is necessary; it's all obvious and agreed-on, and no one need bother with precedential value, as we're assured that the computer will come to similar conclusions in similar cases just by the divine logic of it all.

This was one frustration of mine, coming from a scientific/technical background and from using computers that usually did what you told them to do in predictable ways. I understand that the law needs a slightly different approach in order to be practical and also just, but I was a little taken aback by how far from "predictable" it was. I shouldn't have been, having been through some of the early delirium and subsequent frustrations of the artifical intelligence "boom"....

An "originalist," as you and Professor Koppelman are using the term, looks beyond the text for the "original intent" of those who drafted and ratified the Constitution....

And off into the land of "deuling quotes", "intent of the writers" versus "intent of the ratifiers", pretending that there was a specific "intent" for a specific situation that was never presented to them, etc....

At least the texts of statutes and the Constitution are reasonably well settled, regardless of who wrote it or ratified it. But even the text requires that English be parsed, and that's hardly an automatic thing (the AI people have been at it for well on nigh half a century, and just such a simple thing as natural language searches are hacks and kludges [see, e.g. the "natural language" queries of Westlaw and Lexis/Nexis which are just crude front ends to queries such as "<keyterm> w/50 <keyterm> and <keyterm>"]).

"Bart" is of the curious opinion that if we look into the minds of the appropriate person(s) (after we decide who in fact these people are), we'll have the answers we seek.

As has been pointed out by others, just because someone thought something (or might have thought something had they been aksed) is hardly an excuse for that being the settled law, either.

... I share Justice Scalia's doubts about this approach. I would generally limit my historical research to determining what the words and phrases of the Constitution meant when the document was enacted, much the way you would engage in contractual interpretation.

And who's going to do the "historical research" and "determining"? Who decides which of several alternative "meanings" is the 'correct' one? I dunno if I trust you, "Bart". You're of the pretty much unarguably wrong impression that Brown II "held that courts may legislate forced bussing of students to achieve desegregation." With "historical research" like that, all notions of the inevitability of accuracy, much less objectivity, go right out the door.

That being said, original intent can be useful in filling in the blanks when the constitutional language is vague. This is similar to using parol evidence to interpret vague contractual provisions.

Hmmm. But I thought that "Bart" argued pretty much the opposite ... oh, yeah, here (see below in that thread for my takedown of that sophistry). "Bart" has invented "situational law" or "legal relativism"; what constitutes a good 'argument' depends on what he wants to say.

Because original intent is based on actual historical record, ...

Oh, really? They secretly invented a thought transponder two centuries ago and didn't tell us about it? The shame, the shame....

... such an effort is far more objective and honest than a judge simply inserting in his or her own personal policy preferences in the name of a "living Constitution."

"Bart" makes this out to be an "either/or" type thing. It is not. Nor is there this "straw man" of his: the judges simply doing things because of their "personal policy preferences" ... unless, well, yes, maybe that's what happened in Dubya v. Gore....

... Therefore, I would disagree with Professor Koppelman's comparison which you cited.

And I'd disagree with you, "Bart". That makes us even, I guess, outside of your demonstrated difficulties in even using the methods you espouse.

And I'm still waiting on how you could possibly justify your claim that the Eleventh Amendment means precisely what it does not say. Is this a sore subject for a "textualist" such as yourself, "Bart"? Is that why you avoid answering like the plague?

Cheers,
 

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