Tuesday, November 12, 2013

Champions of the Common Law, on the Supreme Court

      Originalists have been conducting an interesting discussion, largely among themselves, concerning the conflict between their new theories of textual interpretation and an older common-law tradition--with which Holmes of course was identified, although his name doesn't come up often these days. The conflict is straight-forward: Holmes and many judges of his generation believed the Supreme Court was established by the Constitution as a common-law court, and accordingly gave great deference to its own precedents, a doctrine we like to label with the Latin tag stare decisis. Justice John Paul Stevens was a strong defender of precedent, as a recent article by Roger Citron reminds us. Citron calls Stevens "the last common law justice," and Lawrence Solum has blogged a link to his article on his own originalist Legal Theory Blog. Professor Solum seems to be pursuing ideas in an article by Kurt Lash that he has also blogged.

Lash reminds us that the Supreme Court occasionally overrules its own precedents, but the opinions in recent cases don't give a clear explanation of when and why precedents should govern and when they should be overruled. His complaint is that opinions overruling precedent don't state any clear theory, and he comes to the aid of the justices by saying that they have silently adopted something called the theory of a "Living Constitution." 

There are a great many assumptions buried in his premises. Lash and apparently Solum assume that precedents are overruled when they are found to be in error, while of course that is rarely given as the reason; most frequent perhaps is the claim that the precedent does not apply to the modern conditions in which disputes resembling those of the past arise. The theory that Lash calls "Living Constitutionalism" is simply that changing conditions may require a different understanding of the way the Constitution's principles play out. This is not a doctrine that calls for changing or reinterpreting the values enshrined in the text of the Constitution, it is only a way of understanding that text, one that differs from Lash's.

There are other problems with Lash's article, which certainly has the virtue of the transparency he recommends, and rightly says that the Court's opinions often lack. What I want to point out here is only that Justice Stevens is also celebrated as the last liberal originalist,and Justice Ginzburg reasonably claims that he was not the last, and that she too is an originalist. The question is not whether the text of the Constitution should govern the decisions of courts, but how that text is to be understood. We would all be pleased if the justices would speak more plainly about the way they understand the Constitution--what sort of document it was and is.