The issue for many originalists, of course, is not whether a prior decision is “correct,” but whether the reasoning/holding of that case is based on a plausible interpretation of the constitutional text at issue. If it is, and a substantial body of case law has been built upon the foundation of this decision, then it is perfectly reasonable for a justice to let that precedent stand as is (even if that justice would have ruled differently as a matter of first impression). But this type of “hard” originalist case is not at the center of the “stare decisis” debate. The question, plainly put, is this: At what point does it cease to matter that a prior Supreme Court decision is nonsense on stilts?
For those of us in the (Clarence) Thomas Camp, the answer is: Never. A Supreme Court decision that has no basis in the text, history, or structure of the Constitution is always and forever a judicial abomination, no matter how much time passes (e.g., Dred Scott v. Sandford, Plessy v. Ferguson). For the Burkean originalist (see, e.g., Scalia), the answer is: It depends on whether the line of jurisprudence is no longer controversial (i.e., it has essentially become woven into the fabric of the Constitution—whatever in the heck that means). Finally, for the living constitutionalist, the answer is: It depends on whether the decision in question enshrines into the Constitution a preferred policy preference (e.g., Roe v. Wade=Stare decisis is sacrosanct!; Bowers v. Hardwick= Stare decisis is fo’ suckas). In comparing the foregoing approaches to constitutional interpretation, it doesn’t take a law degree to recognize which one is concerned with, well, actual interpretation of the relevant text.
Is he serious? If Feddie's criteria for when to respect precedent is whether "the reasoning/holding of that case is based on a plausible interpretation of the constitutional text at issue," then both Plessy and Dred Scott are simply terrible examples. Both are perfectly plausible interpretations of the constitutional text, structure, and especially history. The outcomes are not the only plausible outcomes, but legally they are not "nonsense on stilts". What those cases have in common is that they are both morally abhorrent (like, to a different degree, Bowers was). Which is why Feddie cites them. But that logic is the definition of impermissible "policy-making" as per Feddie's final paragraph.
This is the problem with how conservative judicial philosophy is actually practiced. For all its protestations of objectivity and neutrality, the policy tails completely wag the theoretical dog. Anyone who tries to sell you on the notion that Dred Scott was completely disconnected from "the law" is selling you the legal equivalent of the Brooklyn Bridge. There are plenty of grounds -- indeed, plenty of legal grounds -- to critique Dred Scott. But claiming it violates some mythical "just the facts, ma'am" vision of law is not one of them. Pretending otherwise is what happens when you, well, think the Constitution enshrines preferred policy preferences.
Not sure you're right about Dred Scott, but definitely true for Plessy. Michael McConnell may have tried to make Brown's result safe for originalism, but I don't buy it, and originalism certainly doesn't requires his result. (Meanwhile, Bork's is a pathetic dodge; it essentially boils down to "we can ignore what the contemporaneous Congress actually did so long as we think they'd approve of our goals." This is how we get Leegin in the face of the CGPA.) I kind of grudgingly admire the conservatives who acknowledge that Plessy was a perfectly good interpretation of the Constitution and that there's no way to reach Brown's result through their preferred methods of interpretation. Of course, those are conservatives who don't run for office, and therefore are free to express unpopular views.
ReplyDeleteGraber's book certainly makes a strong argument on Dred Scott. I'm not sure I buy it wholesale, but I think it certainly shows the decision is based on a "plausible interpretation of the constitutional text at issue," which is Feddie's stated standard here.
ReplyDeleteDavid-
ReplyDeleteYour criticism would be valid if I were arguing that the original intent of the framers/ratifying legislators mattered in determining the meaning of constitutional text. But as you know all too well, that is not my view or brand of originalism. What matters to me is the original meaning of the ratified text, and under this brand of originalism Brown and Plessy are simply not plausible interpretations of the Fourteenth Amendment.
What matters to me is the original meaning of the ratified text, and under this brand of originalism Brown and Plessy are simply not plausible interpretations of the Fourteenth Amendment.
ReplyDeleteHowzat? If neither Plessy nor the case overturning Plessy plausibly interpreted the 14th Amendment, what does the 14th Amendment -- which doesn't even mention race in its text -- mean?
PG-
ReplyDeleteThis is where the structure and history of the 14th Amendment come into play. Think real hard about the two constitutional amendments bracketing the 14th Amendment, and you'll start heading down the right originalist road. :)
Yeah, I have to admit I'm confused about what the doctrine "should" be assuming both Plessy (segregation is constitutionally permissible) and Brown (segregation is constitutionally impermissible) are wrong. Moreover, from a structuralist standpoint that combines amendments 13 - 15 together, there is a "plausible" case that the amendments were meant to protect "political" but not "social" rights (the Plessy logic).
ReplyDeleteI also think that even from an original public meaning perspective, it is tough to argue that Dred Scott isn't even a plausible "interpretation of the constitutional text at issue" (indeed, C.J. Taney's opinion spends quite some time establishing that). And I think you could make a plausible case that the public meaning of the 14th amendment was not understood to forbid state-sponsored segregation.
Of course, even narrowing the inquiry to "original public meaning" means that we're seriously stretching both the terms "plausible interpretation" and "nonsense on stilts". If only one interpretative theory is legitimate to utilize as to whether a case is "nonsense" or not, then we're not really talking about "plausibility" in any meaningful sense -- it should be reasonably black and white. The whole point about using the term "plausible", as opposed to the alternative of simply "correct", is to admit there are these differences in (among other things) interpretative schemas and we can't just throw out precedent because it doesn't follow our particular preferences in that matter.
The real problem is that "plausible interpretation" doesn't seem to be doing any work except knocking out "interpretations I don't like", which gets us back to the original problem: that this theory is effectively nihilist -- "nonsense on stilts".
"This is where the structure and history of the 14th Amendment come into play. Think real hard about the two constitutional amendments bracketing the 14th Amendment, and you'll start heading down the right originalist road. :)"
ReplyDeleteThat's what I thought the standard original intent argument was. How can you refer to the history not only of the 14th Amendment but also of the 13th and 15th as telling us what the 14th meant, while denying that we can get meaning from what Congress was doing around that same time? My understanding was that original meaning required one to say "This is what the specific words in this amendment meant at the time," not "The words meant this, and we know this not because of the actual words, but because of what some other amendments passed at the same time said."