Thanks for joining this episode of the No. 86 lecture series, where we explore the method
and purpose of Originalism.
Today’s episode features Lee J. Strang, the John W. Stoepler Professor of Law and
Values at University of Toledo College of Law.
Professor Strang writes and teaches about Originalism, Constitutional Law, Property,
and religion and the First Amendment.
As always, the Federalist Society takes no position on particular legal or public policy
issues; all expressions of opinion are those of the speaker.
Professor Strang, we talked a bit about precedent in another episode.
You explained that in the Natural Law tradition, precedent has an important and necessary role
to play.
Is there any consensus among Originalists about a function for precedent?
Do different views about precedent arise from disparate approaches to Originalism?
On the one hand, when you think of originalism, it is unified, originalists are unified by
some core commitments.
One core commitment is that the constitution's meaning was fixed when the constitution was
ratified.
A second core commitment is that government officials and Americans should follow that
fixed meaning in their official duties.
So the constraint principle and the contribution thesis are that we have a fixed original meaning
that should then tell us what the constitution's meaning is today.
So those core commitments are shared by all or almost all originalists, but at the same
time, there's a significant diversity among originalists over different aspects of originalism.
One source of diversity is what is the appropriate way to characterize and identify the constitution's
meaning when it was adopted?
The main camps are original meaning originalism, original intent originalism, original understanding
originalism, original methods originalism, and original law originalism.
My own view is that most of those different ways of approaching the authoritative constitutional
meaning are in fact have significant overlap.
My own view is that they have in fact, a total overlap.
And so that those different ways are in fact are misleading, that there's one approach
and that's public meaning rightly understood, which incorporates intent, understanding and
methods.
A second distinction among originalists is how originalists approach precedent.
I think there's kind of two levels to this.
One level is most originalists historically have said little, if anything, about precedent
that it's been viewed as extraneous to the enterprise of originalism to governing.
But one of the things that happens when you have significant influence and your theory
of interpretation becomes the leading or the governing theory of interpretation is that
you have to grapple with the actual mechanisms of implementation of that meaning.
So precedent is something originalists have begun to address over the last 15 years.
And in particular, the position of nonoriginalist precedent is one that continues to divide
originalists.
And I think you have basically two camps of originalists.
So one camp of originalist, which I think is the more, a traditional position among
originalists was to reject all or almost all nonoriginalist precedent.
And the more recent which I think now is the majority position is that the constitution's
original meaning requires originalism to reject some, but not all nonoriginalist precedent.
Now the different theorists have different reasons, different explanations for when and
how to overrule nonoriginalist precedent.
But the key point is that it's not a wipe that's slate clean position.
So where does that leave us?
Is Originalism even possible now that there is so much non-Originalist precedent?
This must be an especially difficult question for judges faced with previous rulings.
One of the common criticisms of originalism is that originalism today in 2021 is impossible,
or at least impracticable because of the significant body of nonoriginalist precedent.
That's been articulated by the Supreme court since around the New Deal and in some cases
before.
And that's a legitimate criticism of originalism and the power behind it is that given our
legal systems commitment to stare decisis, which is a healthy commitment, because stare
decisis in our legal system is an essential component of the rule of law.
And the rule of law is an essential component in the common good of our community.
So it's important for precedent to not be overruled arbitrarily, for precedent not to
be overruled summarily in a way that deep reliance interests are upset and that the
stability of a legal regime becomes upset.
And so that's why that existence of that large body of non-original as precedent, presents
a challenge to originalism.
So I want to acknowledge that point, but at the same time, what originalists have done
is they've been able to identify a way to approach this nonoriginalist precedent that
seeks to preserve the value of stare decisis while also preserving the authority of the
constitution's original meaning.
And the approach that I've taken is rooted in the judicial power that federal judges
exercise.
So if federal judges and Article III, Section 1, Clause 1, exercise the judicial Power of
the United States.
This is the power of judges that Americans were familiar with in 1787, and 1789.
And a key aspect of the power of judges was the creation of precedent.
And this is the important point, being bound by precedent.
And so you see in the debates over the constitution, there was a widespread agreement among both
proponents and opponents of the constitution that the new federal judiciary would create
constitutional precedent and be bound by constitutional precedent.
So for example, Alexander Hamilton in Federalist 78, responding to Brutus, he made the argument
that we need to give federal judges lifetime tenure, because federal judges are going to
have to spend their days mastering a body of precedent, and then following that body
of precedent.
So he took as a premise of his argument that there was going to be significant stare decisis,
and then use that premise to support a more contested claim of the lifetime tenure of
federal judges.
So stare decisis is an important aspect of federal judicial power.
And therefore I think an important aspect of how judges approach precedent, including
nonoriginalist precedent.
So what should an originalist judge do when faced with a nonoriginalist precedent or a
line of nonoriginalist precedence?
I think that the, not the federal, the originalist judge must take into account three factors.
The first factor is to what extent is this nonoriginalist precedent a deviation from
the constitution's original meaning?
And the insight behind this factor is that if it is the case, as I've argued that the
constitution's original meaning is our legal systems mechanism to secure the common good,
then deviations from that original meaning are going to be deviations from the ability
of the legal system to effectively pursue the common good.
So the greater the deviation, the more pressure on that precedent to be overruled, the less
deviation, the less pressure on that precedent to be overruled.
And you can imagine lots of different scenarios where precedents are significant deviations
and some are less of a deviation.
The second factor is whether or not overruling the precedent would harm rule of law values,
or did the extent to which overruling the precedent would harm rule of law values.
And you can imagine some precedents have been around for a long time.
They're deeply entrenched.
Lots of people rely on them.
And that precedent is going to be more immune from overruling than a more recent precedent,
one that has fewer alliance interests and one regarding whose those reliance interests
may not be that wading.
A good example might be the case of Roberts versus Ohio.
So Roberts versus Ohio was a decision by the Supreme Court dealing with the confrontation
clause, and the confrontation clause at least historically had required an actual confrontation
between an accused and a witness against the accused, at actual in-court in-person confrontation.
Roberts versus Ohio, the Supreme Court using a nonoriginalist interpretation said, "Well,
there are certain circumstances where you can have an outer court statement introduced
against an accused so long as there are quote, adequate and dish of reliability."
And then the Supreme Court later overruled Roberts versus Ohio in a case called Crawford
versus Washington.
Now think about a judge at the time of Crawford versus Washington, that was about 30 or so
years after Roberts versus Ohio.
What are the reliance interests on Roberts versus Ohio?
Were there some reliance interests?
Prosecutors who are contemplating prosecuting a case for a particular defendant that is
in custody, that they would be somebody who would rely on the Robert's decision to introduce
out of court statements in some limited circumstances.
So that's not nothing, but that's definitely not as much of a reliance interest.
For example, as Americans relying on the legal tender cases, the series of cases from the
19th century that made the dollar bills in our pocket legal tender and lawful.
So Crawford versus Washington had relatively an easy case to make for overruling Roberts
versus Ohio, because there just wasn't much of alliance interest in that case.
The third factor is to what degree does the nonoriginalist precedent create just relationships
between Americans?
Because it's often the case that a precedent, even if it's a mistake, even if it's illegal,
may still create just relationships between Americans.
And in the legal world we actually have a turn of speech that I think exemplifies or
captures this where there's a precedent that you think was wrong, but you'll say something
to the effect of, I liked the precedent, even though it's an illegal precedent.
And you like it because it led to what otherwise would be a just result.
And so, that last factor is the factor that is most reasonably subject to reasonably different
views, but it's an important factor because if you're in the situation of a legal system,
deciding whether to overrule a precedent, an important aspect of that precedent is the
precedent leading to just relationships or unjust relationships?
And so, if it's leading to unjust relationships, that's an additional argument to get rid of
the case.
It's actually doing affirmative harm to your citizens.
Whereas if it's leading to just relationships, that's a reason to be cautious about overruling
it, maybe you don't overrule it, maybe you just limit it.
And so originalism can face the challenge of nonoriginalist precedent by selectively
identifying which precedents to limit, overrule and in some cases which precedents to follow,
because for example, the precedent is deeply entrenched.
Let me say one last thing about the problem of nonoriginalist precedent.
Originalism has a problem with nonoriginalist precedent, at least as I can see as I conceive
originalism, but at the same time, the problem of precedent isn't unique to originalism,
that every theory of interpretation that is at least modestly principled, is going to
have precedents that come out inconsistent with it.
And how do we know that?
Because the people who make precedents are human beings and they make mistakes, and it
would be beyond unusual if there's a theory of interpretation that led to the conclusion
that there are no mistaken precedents.
And every theory that I'm aware of, that's even halfway plausible has identified precedents
that under that theories lights are mistaken.
And so even though nonoriginalist precedent is a problem for originalism, it's no different
in kind than other kinds of problems.
And I also don't think it's any different in quantity, given the analysis that I proposed
for other theories of interpretation.
And in particular, some theories of interpretation may actually have a really hard time identifying
ways to overrule mistake impresses by their own light, depending on what that theory of
interpretation is.
Originalism however gives you a clear line to the extent that there's determined original
meaning, it's able to say which precedents are consistent and originalist, and therefore
not subject overruling, and which precedents are inconsistent and nonoriginalist and therefore
prima facie subject to overruling whereas a living constitutionalist, depending on his
or her different theory of interpretation may have a difficult time identifying even
prima facie, what are mistaken and what are not mistaken precedents.
Being able to recognize a problematic precedent is one thing, but what can be done about it?
Do mistaken precedents carry the same weight of authority as other precedents?
Are lower courts and government officials bound by non-originalist Supreme Court decisions?
Most American law students when they study constitutional law will cover a case called
Cooper versus Aaron.
Cooper versus Aaron was one of the cases dealing with the effects of implementing Brown versus
Board of Education.
So Brown versus Board of Education decided in two phases, 1954 and 1955 ruled famously
that the 14th Amendment required that all public education be done on a basis of racial
equality.
That day jury legally mandated racial segregation was unconstitutional.
And as the history goes, many Southern State officials, many Southern States strongly resisted
Brown and the implementation of Brown.
One of the cases to reach the Supreme Court was Cooper versus Aaron.
And in Cooper versus Aaron local state officials said that they were not bound by the precedent
in Brown because they weren't parties to the precedent in Brown.
And so the Supreme Court famously said that state officials and all government officers
in the United States are bound by the US constitution and by the Supreme Court's interpretations
of the US constitution through an infamy where the Supreme Court equated as on a one-to-one
identity ratio, the US constitution to the Supreme Court's interpretations of that constitution.
My own view is that that view of the relationship between the Supreme Court and the constitution
is mistaken for a number of reasons.
The most important reason is that the constitution's original meaning is what's authoritative in
our legal system.
The Supreme Court has a role, a very important role in our legal system, but the Supreme
Court's interpretations are not the constitution's original meaning.
In fact, because of the phenomenon of nonoriginalist precedent, we know that the Supreme Court
on not an irregular basis mistakenly interprets the constitution.
Now there's one question about, well, if you're another federal official, to what extent are
you bound by a mistaken Supreme Court precedent?
And there's been famous instances in American history where federal officials have resisted
mistaken Supreme Court precedents.
The most famous one is when President Abraham Lincoln resisted the Supreme Court in particular,
chief justice Taney's ruling in a case called Ex parte Merryman where Chief Justice, or
where President Lincoln said, "You effectively said you made an incorrect decision.
I, as the president exercise the executive power.
I was not a party to that decision.
And therefore I'm not bound by that decision."
But what about state courts?
To what extent are state courts subject to and bound by incorrect nonoriginalist Supreme
Court precedents.
And the conclusion that I draw is that state courts are not bound by incorrect Supreme
Court nonoriginalist precedence, and that's for two related reasons.
One is that state Supreme Courts draw their authority, not from Article III, not from
the US constitution, but draw their authority from the state's police power and the people
of that state.
So I'm from Ohio and the Ohio Supreme Court draws it's authority from the Ohio constitution
and the Ohio people.
And so the source of authority in the judicial hierarchy is that the Supreme Court is not
a US constitutional superior to the Ohio Supreme Court with, and this is the second key point,
with the exception of when the US Supreme Court rules on a decision and that decision
involves a party that, and the Supreme Court's ruling involves a party that applies to in
Ohio court.
In that decision, the US Supreme Court exercising federal judicial power under the supremacy
clause is able to order in Ohio court, even if the Supreme Court's decision is incorrect,
is able to order an Ohio court to do or not do something to act pursuant to its interpretation
of the constitution.
But outside of that context, the federal judicial power does not authorize the US Supreme Court
to tell state court judges to do what is in fact, an incorrect interpretation of the constitution.
Cooper versus Aaron articulated the view that today is widely held by, and unquestioned
by scholars and judges.
But over the last couple of years, there've been a number of scholars who have written
articles that have questioned the scope of Cooper versus Aaron in particular as Cooper
versus Aaron applies to state courts as vis-a-vis non-original Supreme Court precedent.
Thank you for listening to this episode of the No. 86 Lecture series on Property Law.
The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging
discussion and critical reflection relative to how each subject is widely understood and
taught in law schools and among law students.
Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each
episode delivered the moment it’s released.
You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers,
the Judiciary and more.
Thanks for listening.
See you in class!