Here is a third thing I like about Originalism and the Good Constitution, before getting to the book's main point (see here and here for parts 1 and 2):
The authors argue persuasively that precedent is not only not inconsistent with originalism, but is (at least in a weak form) required by originalism. They say (p. 154):
Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent. But if originalism cannot be reconciled with precedent, it becomes a theory of limited appeal and usefulness. Originalism would then require ignoring precedent even when doing so has enormous costs. It would also conflict with the practice of almost every justice and judge in the nation's history. …
… We argue that nothing in the Constitution forbids judges from following precedent. Rather, the Constitution allows for precedent in two ways. First, the Constitution, as a matter of judicial power, incorporates a minimal notion of precedent. While this minimal incorporation has important theoretical implications … it is so minimal that it does not have significant practical consequences for current judicial disputes about precedent. Second, the Constitution treats precedent as a matter of federal common law that is revisable by congressional statute. Thus. the courts initially and Congress ultimately possess significant discretion over which precedent rules should be adopted. The Constitution thereby allows either extremely weak or extremely strong precedent.
I mostly agree. The authors rest their case principally on the observation that judges in England, the colonies and the newly independent states routinely used precedent, albeit with varying degrees of strength. As a result (they say, and I agree), it is very probable that the founding generation understood Article III's "judicial Power" given to federal judges to include (a) some at least minimal obligation to respect precedent and (b) a common law power to develop approaches to precedent for the future. As they say (p. 168):
The term "judicial power" [MDR note: no capital "p"?!] in Article III is, at least on its face, ambiguous. It might be understood narrowly to mean the power to say what the law is in a particular judicial proceeding. But it might be understood more broadly to include certain traditional aspects of the judicial office that were widely and consistently exercised. Such core aspects of an office often come to be identified with the power that the officer exercises. One prominent example is the view of many originalists that executive power is not simply the narrow view to execute the law but also includes many of the traditional power of executive, such as the foreign affairs power. [Thanks for the cite, n.78]
The authors go on to say that given the historical application of precedent "it is likely that, when the Constitution was enacted, a judge refusing to give any weight to a series of cases all decided in the same way would have been deemed not merely to have been mistaken, but to have improperly exercised judicial authority." (I agree with all this, especially the part about the executive power). They then say (p. 171) that while only a minimal respect for precedent is required of the judicial power, "the history recounted in this chapter … strongly suggests that the Constitution does not prohibit precedent, [but] the historical variation of precedent rules also indicates that the Constitution does not enact most of the rules. Treating precedent as a matter of common law allows for precedent to operate under the Constitution without requiring identification of a single, unchanging approach …"
I'm not sure if they are saying here that the "judicial Power" vests federal courts with the traditional power of judges to develop varying rules of precedent in common law fashion, but that's how I would put it.
My only quibble is that I'm skeptical of their claim that Congress could enact rules of precedent. Maybe so, because ordinarily Congress can override common law. But maybe not: deciding how precedent is applied might be a judicial power that isn't subject to legislative revision. As far as I know, there isn't any history of legislatures directing courts how to apply precedent. The authors' claim that Congress has this power seems to rest almost entirely on the syllogism (1) precedent rules are common law; (b) Congress can override common law; (c) therefore Congress can override precedent rules. But I am very doubtful of arguments that purport to establish historical meaning by what appears to us to be logically compelled reasoning. The founders' logic might have been different from ours. Perhaps they thought of precedent as a different sort of common law over which legislatures could not intervene because it involved the power to decide cases. At minimum, the book's claim here seems unproven. (But in any event this is a minor and hypothetical point. The main contribution here is the powerful argument about the judicial power — and duty – of precedent under the Constitution's original meaning).
Posted at 6:56 AM