Supreme Court
read one way
during an earlier
period may be read
by the Court to say
something different
in a later period.
“Corrections”
of this sort do
not revise the
underlying
constitutional
provision or
structure itself.
They aim, instead,
to preserve the
basic meaning of
the Constitution
by improving one’s
reading of its terms.
judicial department to say what the law is.”15 It thus follows, John Marshall claimed, that the Supreme Court must be supreme expositor of the law of the Constitution. The idea of the “constitution as hard law, law written in virtually capital letters (LAW), law as meaning reliable law,” has seemed to some “by far the most important idea of the Constitution.”16 But “if the Constitution predominates because it is law, its interpretation must be constrained by the values of the rule of law, which means that courts must construe it through a process of reasoning that is replicable, that remains fairly stable, and that is consistently applied.”17 In the American legal sys- tem, given its common law character, the principle of stare decisis has been at the very heart of the rule of law. It has also been valued for its place in a Burkean accretion of traditions and values, an accretion sometimes hon- ored for its own sake and at other times valued for its supposed capacity to distill wisdom from experience in a way that would defy the ability of any single lawgiver, whether legislative or judicial. Henry Monaghan, among the most astute students of stare decisis in constitu tional adjudication, has stressed its functions in legitimating the consti tutional order and in con- tributing to the reality and the appearance of the law as impersonal if not altogether objective.18 . . .
In order for it to have any meaning, the principle of stare decisis must with some frequency require a judge to follow, and indeed to extend when principled adjudication so requires, constitutional prece dents that the same judge would overrule if free to interpret text, draw inferences from struc- ture and history, and pursue constitutional values, all unconstrained by the pull of previously decided cases. Thus those who see themselves as pursu- ing an interpretive philosophy of original mean ing will, if adhering to stare decisis in all but the highly exceptional case, end up building on precedents that cannot be squared with that original ist philosophy. Justice Scalia, who takes stare decisis quite seriously in light of his strong views about the rule of law, and who accepts the proposition that “[o]riginalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis,”19 justifies the departures that doctrine requires from his originalist views by remarking that “stare decisis
is not part of [his] originalist philosophy; it is a pragmatic exception to
15 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
16 William W. Van Alstyne, The Idea of the Constitution as Hard Law, 37 J. Legal Educ. 174,
179 (1987).
17 Post, supra note 10, at 30 (footnote omitted).
18 See Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev.
723, 749-53 (1988).
19 Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 138-39 (Amy
it.”20 But it is a necessary exception—one without which the Constitution could not be translated into a working system of law, characterized by values of predictability, regularity, and stability that themselves have deep consti tutional roots.
To take seriously the obligation to be guided by constitutional prec- edent, in other words, is not to make some utterly unprincipled concession to the shortness of life or to some other exogenous constraint; rather, it is to pursue a vision of constitutional values more complex than nailing down, and securing against change (short of a constitutional amendment), the concrete understandings of the founding generation. It is only because construing the Constitution in accord with whatever theory one believes correct, and putting in place a system of legal rules to implement what- ever constitutional construction one advances, are both key dimensions of constitutionalism that an adherent of any given philosophy of constitu- tional interpretation can, and indeed must, some times “say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability.”21 The upshot is that the Constitution’s text, and his- torical material relevant to the text’s proper understanding, will almost invariably recede into the background behind a parade of precedents, until the Constitution itself begins to seem “rather like . . . a remote ancestor who came over on the Mayflower.”22 As Robert Post has rightly observed, beginners in constitutional law are often amazed by how little of the Con- stitution they find in constitutional opinions, which tend to be filled with the elaboration and application of various doctrinal “tests” extracted from prior judicial decisions.23
. . .
When Constitutional Worlds Collide: Can the Constitu tion Arbitrate Among Competing Modes of Interpretation From a Point External to the Interpretive Process?
. . .
. . . [M]any of the most serious conflicts posed by constitutional ques- tions are bound to be intramodal, and not solely intermodal. Whether the conflicts in analysis occur within or across modes, or both, there is a temp- tation to minimize the significance of such conflicts or at least to insist that they can be “managed” without endangering the methodical and orderly nature of the attempt to cate gorize, systematize, and, in a sense, detoxify 20 Id. at 140.
21 Id. at 139.
22 Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 234
(1980).
the potentially unruly and emotion-laden universe of constitutional inter- pretation. . . .
. . .
Ultimately, the quest for a grand unified theory, or at least an over- arching metamode or metaprinciple, seems a vain one both as a practical matter and as a matter of principle. The appeal of all grand syntheses to the “puzzled and uncertain”24 has been all too familiar a feature of the intellectual landscape throughout history. Although it cannot satisfy the hunger for certitude and clarity, only a “candid avowal of the limits of originalism,” of every other interpretive tech nique, and of every effort to blend the techniques into an integrated, determinate whole, “can open the process of constitutional interpreta tion to the full public debate without which it partakes only of miracle, mystery, and unquestioned authority.”25
24 Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100
Harv. L. Rev. 1189, 1225 (1987).