At Verdict, Michael Dorf: The Lasting Legacy of Henry Monaghan. From the introduction:
Columbia Law Professor Henry P. Monaghan died last week at the age of 90. Although not widely known outside the legal academy, Monaghan was a towering figure within it. …
In this column, I shall focus on two of Monaghan’s most influential articles with the aim of showing how his work remains at the center of key constitutional controversies. Although I disagree with important elements of much of what Monaghan wrote, I recognize the power of his scholarship. The Supreme Court could (and almost certainly will) do worse than to learn from Monaghan’s work.
From the discussion of the first article:
In various writings and speeches, the late Justice Antonin Scalia defended his preferred mode of constitutional interpretation—originalism—against the charge that it could not account for the longstanding and indispensable practice of stare decisis, which gives effect to precedents even if they are wrongly decided, unless there is a truly compelling reason to overrule them. Scalia conceded that giving precedential effect to nonoriginalist or otherwise wrong (by his lights) decisions was inconsistent with originalism, but, he frequently said, honoring precedent is a departure from any theory of constitutional interpretation.
Yet, on close examination, that answer won’t wash, for reasons that Monaghan set out in a powerful article in the 1988 Columbia Law Review: Stare Decisis and Constitutional Adjudication. Monaghan’s starting point was not far from Scalia’s. He too equated the Constitution’s contemporary meaning with its original meaning. But unlike Scalia, Monaghan recognized that the compelling grounds for giving effect even to wrongly decided precedents could not be so easily cabined. In his conclusion, he suggested that the same sorts of considerations that lead to adherence to decisions that misconstrued or disregarded the constitutional text’s original meaning will sometimes appropriately lead to new decisions that depart from the original understanding. To justify stare decisis is thus to substantially undermine originalism.
And on the second:
Next, consider Monaghan’s 1981 article in the N.Y.U. Law Review: Our Perfect Constitution. The title was intentionally ironic. Monaghan did not believe the Constitution was perfect. Far from it. His chief contention was that many of his contemporaries, especially in the academy, proceeded on the assumption that it was.
But wait. Did anyone really think the Constitution perfect? After all, the Senate and the Electoral College over-represent rural states. The Constitution exhibits xenophobia in limiting the presidency to natural born citizens. By contrast with many national constitutions of more recent vintage, it does not contain economic, social, and cultural rights, such as housing and education. Surely no serious person believes the Constitution perfect.
Yet Monaghan’s argument was not directed at a straw man. He acknowledged that the targets of his critique did not believe the Constitution to be literally perfect. He used the metaphor of a perfect constitution to describe the following proposition that, he thought, too many of the academic commentators of the era believed: “properly construed, the constitution guarantees against the political order most equality and autonomy values which the commentators think a twentieth century Western liberal democratic government ought to guarantee to its citizens.”
More than anything, Our Perfect Constitution was a critique of the enthusiasm for finding rights like contraception and abortion in the Fourteenth Amendment’s Due Process Clause. Monaghan thought that the scholars he was critiquing must have at least tacitly endorsed the perfection proposition because, construed in accordance with original intent (which he regarded as the touchstone), the Constitution would not yield the rights they found in it.
I agree that Professor Monaghan was an enormously important scholar for the originalism movement, both as a proponent and a critic. He is sometimes left out of the early intellectual history of modern originalism, or at least overshadowed by Robert Bork, Raoul Berger and Justice Scalia. But as Professor Dorf notes, in particular Our Perfect Constitution was a sharp indictment of living constitutionalism that was bold and unusual for its time. It was a key text, along with the writings of Bork, Berger and Scalia, in the early originalist movement of the 1980s. But despite that article Monaghan was never as full-throated an originalist as Bork, Berger and Scalia — which I think results in his influence being less fully appreciated.
Posted at 6:09 AM