Originalism

New Essay: "Originalism and Stare Decisis in the Lower Courts"

When and How Can Lower-Court Judges Be Originalists?

|The Volokh Conspiracy |

Most discussions about originalism and stare decisis are SCOTUS-focused. That is, the Supreme Court established some non-originalist precedent in the past, and now the Justices are considering whether to reverse that precedent. However, scholars seldom discuss how lower-court judges–such as Circuit Court Judges or State Supreme Court Justices–should balance originalism and stare decisis.

My new essay, Originalism and Stare Decisis in the Lower Courts, opens up that discussion.

Here is the abstract:

The tension between originalism and stare decisis is well known. Many of the Supreme Court's most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court's unique status, which is perched atop our judiciary, affords its members leeway to make either decision.

Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare.

An originalist circuit judge would only have free jurisprudential rein in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process.

In short, it's tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist.

I welcome any suggestions or comments–especially from judges who agree, or disagree with my approach.

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  1. This is probably a Law 101 question, but in the case of conflicting SC precedents, must the circuit court majority comply with the most recent precedent, or the greatest number of precedents? Or are they allowed in such a case to consider other criteria such as originalism?

    1. I’m not up to Law 101 myself, but I would assume the answer is yes they are supposed to go with the latest one, as the later one presumptively overrules the previous ones. But only if they’re on the same point.

      In practice of course if SCOTUS doesn’t say, when they hand down a judgement saying black is white, that they are overruling their earlier precedent that black is black, that gives the lower court judge lots of cover for arguing that the precedents are not on quite the same point. Otherwise surely SCOTUS would have mentioned it, giving the lower court judge the opportunity to pick the precedent he prefers by a bit of sophistrical distinguishing.

  2. How quaint. Josh thinks modern lower-court judges think of themselves as constrained by the Constitution, originalism, stare decisis or even SCOTUS itself.

    1. Yeah, that made me smile too.

      The point is vaguely remininscient of the Obamacare mandate / penalty thing. If there’s no penalty can there still be said to be a mandate ?

      If there are no consequences to a judge making stuff up unconstrained by all these hypothetical constraints, are there in fact any constraints ?

  3. No matter how wrong a given Supreme Court case is, that precedent must be followed.

    Ahem. Says who?

    The Constitution is clear that the Constitution is the supreme law of the land, and at no point does it mention precedent. While precedent is, under an originalist understanding, part of the “Laws of the United States”, the binding nature of such laws is explicitly limited to those made in pursuance of the Constitution, not those made contrary to it. The Constitution no more allows an unconstitutional Supreme Court ruling to be law than it allows an unconstitutional Act of Congress to be law.

    There is, in fact, nothing in the Constitution that even permits a court, federal or state, to privilege precedent over the Constitution, much less requires a court to. As a practical matter, the Supreme Court may well use its appellate jurisdiction to keep forcing an unconstitutional precedent on an inferior court, but that does not change the inferior court’s duty to always make its initial judgment in accordance with the Constitution itself.

    (Yes, sure, there are precedents to the contrary. And those precedents are no more than precedents, unable to change the fact that the Constitution is still the supreme law of the land, superior to any precedent.)

    1. The Constitution specifically references the common law, and makes clear that congressionally established courts are “inferior” to the “Supreme Court”.

      That’s conclusive.

      1. The Constitution specifically references the common law

        Only in the Seventh Amendment, in reference to a) what we would now call civil suits, and b) on the rules for re-examining facts determined by juries.

        But even if the Constitution did “specifically” reference “the common law” in the sense of judge-made law in general, there is no provision of the Constitution privileges a ruling contrary to the Constitution above the Constitution. Rather, the Supremacy Clause makes it clear that judge-made law cannot trump the Constitution.

        1. Holmes answered your argument. The law is not a brooding omnipresence in the sky.

          The Constitution is not a regulatory code. It is a bunch of broad vague dictates that gain content through the iterative process of common law decisionmaking which the framers adopted. Our courts carried the common law over from the British system.

  4. Consider, e.g., the 7th Circuit opinion in the case known as MacDonald v. City of Chicago, which later came to stand for incorporating the Second Amendment against the states. In the Circuit’s opinion, they were bound by an earlier 2A case decided by the S.Ct. in the 1880s which upheld a Chicago[-area] local law banning people from marching armed against a 2A challenge. The 7th Cir. said they would have ruled for MacDonald and against Chicago’s gun control laws, but for the precedential power of that old case and their duty to follow precedent from the S.Ct. They also said that it was only for the S.Ct. to overrule its own prior decisions.
    The 7th Cir. provided a number of reasons why they thought the old case should be overruled, some of which (IIRC) made it into the S.Ct.’s ultimate decision.
    That is about as far as a lower court can reasonably be expected to go.

    That kind of opinion is to be distinguished from the opinion of a state Supreme Court addressing, say, a 4A search-and-seizure issue in a state-law criminal case. There, state Supreme Courts will often say they start with the 4A law as decided by the US S.Ct. as a baseline of the minimum protections 4A gives. They will then go on to say that their interpretations of 4A (often coupled to their interpretations of their state constitution’s analog) are more defendant-favorable and give broader protection than the S.Ct.’s. I cannot think of a case in which the S.Ct. has overruled a state Supreme Court for making such a decision, but that is not going contrary to precedent.

  5. The Constitution adopts a common law legal system and a hierarchy of courts, so stare decisis is required.

    In contrast, “originalism” is just one of many competing judicial philosophies, not addressed at all by the Constitution.

    So lower court judges should just forget about originalism and apply precedent.

  6. The whole post goes on the assumption that originalism is the only and obvious way to interpret the Constitution:

    A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis.

    Or maybe follow it because it’s correct.

    Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed.

    So non-originalist (whatever flavor is in fashion this month) equals “wrong,” per Blackman.

    1. The whole post goes on the assumption that originalism is the only and obvious way to interpret the Constitution

      Well, obviously. Blackman is an originalist. But {originalism} in his post is substitutable by any theory of interpretation that the judge may adhere to whether that be {purposivism}, {evolving standards of decency-ism}, {think up a reason once you’ve reached yur conclusion-ism}, {whateverism}

      Whatever theory you have for resolving cases for which there is no binding precedent, is going to carry a risk of generating a different answer from the precedent if there is one.

      From that pespective Blackman’s essay is not even about originalism, it’s about the effect of precedent on the conduct of any judge holding any interpretative theory.

      1. You do know that precedent and stare decisis is itself a theory of interpretation.

        1. Not really. It’s a legal principle or rule.

          A theory of legal interpretation is a theory of how to puzzle out what the law means, so that you can then apply your theory to the facts en route to deciding the case. Stare decisis is the legal principle that you do not attempt to puzzle out what the law means (according to any theory of interpretation) if it’s already been done by someone else. Even if you think their effort was woeful.

          Thomas clearly doesn’t believe in this principle (horizontally) and so you can certainly say that his legal theory of how to decide cases incorporates a rejection of any obligation to follow horizontal precedent, but that’s not the same thing as his theory of interpretation.

          There is more to deciding cases than intepreting the law. Hence your theory of the former will be wider than your theory of the latter.

      2. {originalism} in his post is substitutable by any theory of interpretation that the judge may adhere to

        Which just makes it petty.

        If your thesis is generalizable, but you prefer to unnecessarily present it couched in the assumption that you’re right and everyone else is wrong, you’re not being an advocate for that point of view, you’re just stamping your foot.

    2. “The whole post goes on the assumption that originalism is the only and obvious way to interpret the Constitution”

      Well, as a first approximation it’s true, so what’s the problem here? It’s the only way of interpreting the Constitution because the other approaches aren’t “interpretation”, they’re substitution.

      By which I mean, they go looking for meaning in the wrong places, which usually purports to be some version of public opinion, “evolving societal values” or whatever, but which really boils down to whatever the person engaging in it thinks would be good policy. Then they substitute that externally derived meaning for whatever could be found in the Constitution.

      Seriously, when living constitutionalists depart from strict textualism, is it EVER to agree that the Constitution has “evolved” to mean something they don’t like, and think would be bad policy? Not so far as I’ve ever noticed. It always “evolves” towards their own preferences.

      1. I agree about “living constitutionalism” but I don’t think that all possible theories of interpretation, other then originalism, are inherently dishonest.

        For example “currentism” – ie textualism where you look at current meaning rather than original meaning, is just as honest as originalism, if not quite so sensible. Though it does have certain practical advantages – current meaning being more accessible than original meaning.

        Ditto, trying to divine the legislators’ or Constitution makers’ “intent” is not inherently dishonest. You could actually attempt it honestly. And it has the advantage of being – if achievable – a fairly sensible goal. The difficulty is practical. Discerning intent where it is not written down is way harder than discerning the meaning of words that are written down. So hard in fact that it is impossible to police dishonesty, or even your own unconscious bias. Intent is more or less imposible to distinguish from “the answer I’m looking for” and so it gives the judge effectively unlimited discretion. Consequently while “intent” and “living constitutionalism” are theoretically different, practically they amount to the same thing.

        1. Weren’t the original authors simply codifying the “currentism” of the times?

          1. Not quite sure what your point is, or whether it’s just a witticism. But :

            (a) if you mean they were jotting down in text some pre-existing law existing in the common law ether, no I don’t think they were. They were jotting down some new rules

            (b) “codifying” is an interesting word in this context which highlights the conceptual difficulties of currentism. If the law changes over time as popuar usage changes, you haven’t really “codified” anything. Codifying implies you’ve somehow nailed it down. Currentism is more like “embeetling” the law, ie gluing it to the back of a large bettle which then wanders about at random

            (c) the currentism of the times – or rather the current public understanding of the times – is always going to be what is codified. At the time of codification, original meaning and current meaning are necessarily the same. They only diverge over time.

            Which is why originalism is typically discussed in the context of constitutional law – cos the Constiution was written a long time ago and so there has been time for meanings to change. But originalism v currentism also applies just as well to statute – it’s just that most statutes that come before the courts are either pretty recent, or have already generated precedents which have fixed their legal meanings.

            1. if you mean they were jotting down in text some pre-existing law existing in the common law ether, no I don’t think they were. They were jotting down some new rules

              I don’t mean to imply that some of the rules they wrote down were not, in some cases. based on their notions of pre -existing common law rights.

        2. Your currentism is seen as living constitutionalism by most originalists around here.

          As for Brett’s usual question about nonoriginalists finding things they don’t like in their living document, he once again asks the wrong question. A Constitution that takes into account modern experience (whether in vocabulary or purpose or intent) is always going to align more with what the preferences of modern people. One could as easily ask how originalists are so happy with attitudes of 3 centuries ago, as they rarely seem super unhappy with their ideological lot. Just as question-beggy as Brett’s question.

          To ask and answer a better question, both originalists and nonoriginalists tend to have ideologies that align with the operation of their intepretive method. And both originalists and nonoriginalists fail to find everything they want in their interpretations of the Constitution.

  7. The paper incorrectly assumes that every judge is female.

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