Originalism, Tradition, and Precedent

February 11th, 2013

I previously blogged about the role that reliance interests should play when courts rely on originalism to disturb long-standing precedents. The Supreme Cout has been more willing to engage in originalism in open fields, where there are minimal precedents on the books, rather than in the “thicket,” where long-standing precedents and doctrines have emerged.

This dynamic was seemingly reversed in the D.C. Circuit’s opinion in the recess appointment case, where the Court repudiated a two-hundred year old understanding of how the recess power works.

Mike Greve and Mike Rappaport have gone back and forth on this topic, and I think this debate illuminates an important dimension of how originalism should interact with precedent and tradition.

First, Greve seemed cautious about reversing precedents that have been around for a very long time–though those practices were inconsistent with the first few decades of the republic.

I’m not a great fan of hanging too much on definite or indefinite article (“the,” “a”), for statutory or even constitutional purposes. The court’s opinion looks a tad doctrinaire, and it upsets recess appointment arrangements that have been common for many, many decades (although not, Judge Sentelle trenchantly notes, the first several decades of constitutional practice).

Rappaport was not quite as concerned about the reliance interests.

Second, it is true that the decision upsets arrangements that have been common for many decades, but so what?  Are there any significant reliance interests at stake in this area?  No.  Lets repeat that — NO.  So why follow modern interpretations that are inconsistent with the senatorial check that the Constitution places on the President?

Greve had far more concerns about the reliance interests.

 “So what?” asks Mike R. No reliance interests are at stake here; so why not go back? I’m not quite so bold, for two reasons.

First, a longstanding institutional practice will have been examined by tons of very smart lawyers and scholars over the decades, many with great attachment to and understanding of the Constitution. There’s no guarantee that the ongoing constitutional debate always flushes out errors; it may often compound them. But it should take more than a definite article and a few pieces of newly discovered evidence before jumping headlong to the conclusion that everyone over the centuries was wrong, and now we’re right, and away we go. I don’t think Mike R disagrees.

Second, and more important, I do think important interests are at stake (even if I’m not sure I’d characterize them as “reliance” interests). The Constitution sets up rival, competing institutions—and, as a practical matter, compels them to cooperate. Sometimes, it prescribes the mode: bicameral approval, presentment (veto, override).  On a million other things, it does not. When coordination problems prove recurrent, the institutions will work out some mutually acceptable practice. Some practices shift and change over time; others become deeply entrenched. But so long as they work tolerably well and don’t violate the Constitution more or less plainly (and yes, that’s a matter of judgment), it’s rarely a good idea to upset them. The practice serves some institutional function and demand. When it’s  ruled out of bounds the institutions will have to find some other coordination mechanism. That’s always costly. It may be unsuccessful. And it may well be worse than what went before. Before running those risks (in the name of originalism or for other reasons), we should make quite sure that we’ve got it right.

Emphasis in the last sentence in my own.

Rappaport replies, and says this is “an important objection” but it is “mistaken.”

But there is also a functional – that is, a public policy – response to Mike’s defense of the practice.  Mike makes the conservative point that the existing practice, no doubt, serves important interests of the different branches – we just don’t know exactly what they are.  But they were worked out by the beneficial process of adjustment and coordination.

The bottom line is that there is not a good reason to believe that the practice of recess appointments serves the republic and quite a few reasons to think it does not.  By striking down that practice, the courts can help to force the Senate to serve its job as a check on potentially abusive executive power.

I discuss this concept in Back to the Future of Originalism (forthcoming in the Chapman Law Review symposium on libertarian legal thought) in the context of the originalism’s gravitational pull:

In order to understand how a non-originalist argument advances originalism, we must first consider the nature of existing precedents. Randy Barnett explained that there are three views of federalism (and, I would add, relatedly, federalism’s structural protection of individual liberty).

First, there is the pre-1937 view, where the Court, unbound by modern precedents, can rule in accordance with the original public meaning of the Constitution. Second, there is the New Deal-era view of federalism, wherein Congress has a plenary police power to do whatever it deems necessary, and any law that fits within the New Deal’s ambit will be upheld. Third, there is the “New Federalism” of the Rehnquist and now Roberts Court.

This third strand can be best characterized as “this far, but no farther.” In other words, the New Federalism did not repudiate the New Deal view of federalism, nor did it effect a return to the pre-1937 view of Federalism. Rather, it asserted that if the federal government seeks to assert a power that goes beyond what had already been upheld, it must justify that extension for an unprecedented assertion of power. Even under the New Federalism, the Court does not adjudge the constitutionality of the new law purely based on originalism, but instead based on what Chief Justice Rehnquist referred to as “first principles.” It is noteworthy that Justice Thomas’s originalist opinion in Lopez was not joined by Justice Scalia (same for Morrison). This tripartite taxonomy helps to explain why originalism has, and has not been used and successful in recent cases.

Perhaps the best examples in the first category are District of Columbia v. Heller and McDonald v. Chicago. In these cases, the Court was largely writing on a blank slate—precedential open fields, as opposed to deep in the “thicket.” The Court was in no way bound by any sort of New Deal compromise, as the precedential slate was clear. Thus, the Court was free to receive, and did apply originalist arguments. In fact, both the majority and dissent in Heller and McDonald advanced originalist arguments.

For decades, until Lopez and Morrison and other Rehnquist era precedents, the Supreme Court was steadfastly locked in the second zone of the New Deal-era view of Federalism. To paraphrase Larry Solum, that gestalt had crystalized.

This is a very important debate, that I hope to write about further.