judicial role were
unavailable, we
would have to adopt
the rule that judges
must stick to the
original meaning of
the Constitution’s
words. . . . [W]e
would have
to invent the
approach of original
understanding
in order to save
the constitutional
design. No
other method of
constitutional
adjudication can
confine courts to a
defined sphere of
authority. . . .
to the original meaning of the Constitution’s words. . . . [W]e would have to invent the approach of original understanding in order to save the constitu tional design. No other method of constitutional adjudication can confine courts to a defined sphere of authority and thus prevent them from assuming powers whose exercise alters, perhaps radically, the design of the American Republic. The philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.
The Claims of Precedent
and the Original Understanding
The question of precedent is particularly important because, as Pro fessor Henry Monaghan of Columbia University law school notes, “much of the existing constitutional order is at variance with what we know of the orig- inal understanding.”4 Some commentators have argued from this obvious truth that the approach of original under standing is impossible or fatally compromised, since they suppose it would require the Court to declare pa- per money unconstitutional and overturn the centralization accomplished by abandoning restric tions on congressional powers during the New Deal. There is in these instances a great gap between the original understand- ing of the constitutional structure and where the nation stands now. But the conclusion does not follow. To suppose that it does is to confuse the descriptive with the normative. To say that prior courts have allowed, or initiated, deformations of the Constitution is not enough to create a war- rant for present and future courts to do the same thing.
All serious constitutional theory centers upon the duties of judges, and that comes down to the question: What should the judge decide in the case now before him? Obviously, an originalist judge should not deform the Constitution further. Just as obviously, he should not attempt to undo all mistakes made in the past. Whatever might have been the proper rul- ing shortly after the Civil War, if a judge today were to decide that paper money is unconstitutional, we would think he ought to be accompanied not by a law clerk but by a guardian. At the center of the philosophy of original understanding, therefore, must stand some idea of when the judge is bound by prior decisions and when he is not.
Many people have the notion that following precedent (sometimes called the doctrine of stare decisis) is an ironclad rule. It is not, and never has been. . . .
4 [Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 727
The practice of overruling precedent is particularly common in consti- tutional law, the rationale being that it is extremely difficult for an incor- rect constitutional ruling to be corrected through the amendment process. Almost all Justices have agreed with Felix Frankfurter’s observation that “the ultimate touchstone of constitu tionality is the Constitution itself and not what we have said about it.”5 But that, of course, is only a partial truth. . . . [W]hat “the Constitution itself ” says may, as in the case of paper money, be irretrievable, not simply because of “what [the Justices] have said about it,” but because of what the nation has done or become on the strength of what the Court said.
. . .
The law currently has no very firm theory of when precedent should be followed and when it may be ignored or overruled. . . . No question arises, of course, unless the judge concludes that the prior constitutional decision, which is urged as controlling his present decision, was wrong. In making that determination, particular respect is due to precedents set by courts within a few decades of a provision’s ratification since the judges of that time presumably had a superior knowledge of the original meaning of the Constitution. Similarly, precedents that reflect a good-faith attempt to discern the original understanding deserve far more respect than those that do not. . . .
But if the judge concludes that a prior decision was wrong, he faces additional considerations. The previous decision on the subject may be clearly incorrect but nevertheless have become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court, but it is not the less valid for that. Judging is not mechanical. Many rules are framed according to predictions of their likely effects, and it is entirely proper for a decision to overrule or not to overrule to be affected by a prediction of the effects likely to flow from that. Thus, it is too late to overrule not only the decision legalizing paper money but also those decisions validating certain New Deal and Great Society programs pursu- ant to the congressional powers over commerce, taxation, and spending. To overturn these would be to overturn most of modern government and plunge us into chaos. No judge would dream of doing it. It was never too late to overrule the line of cases represented by Lochner, because they were unjustifiable restrictions on governmental power, and allowing additional regulation of economic matters did not pro duce any great disruption of institutional arrangements. Similarly, it will probably never be too late to 5 Graves v. New York, 306 U.S. 466, 491-92 (1939) (Frankfurter, J., concurring).
overrule the right of privacy cases, including Roe v. Wade, because they remain unaccepted and unacceptable to large segments of the body politic, and judicial regula tion could at once be replaced by restored legislative regulation of the subject.
To say that a decision is so thoroughly embedded in our national life that it should not be overruled, even though clearly wrong, is not nec- essarily to say that its principle should be followed in the future. Thus, the expansion of Congress’s commerce, taxing, and spending powers has reached a point where it is not possible to state that, as a matter of articu- lated doctrine, there are any limits left. That does not mean, however, that the Court must necessarily repeat its mistake as congressional legislation attempts to reach new subject areas. Cases now on the books would seem to mean that Congress could, for example, displace state law on such sub- jects as marriage and divorce, thus ending such federalism as remains. But the Court could refuse to extend the commerce power so far without place but not giving generative power to the faulty principle by which that leg- islation was originally upheld. It will be said that this is a lawless approach, but that is not at all clear. The past decisions are beyond reach, but there remains a constitutional princi ple of federalism that should be regarded as law more profound than the implications of the past decisions. They can- not be overruled, but they can be confined to the subject areas they con- cern. . . . There are times when we cannot recover the transgressions of the past, when the best we can do is say to the Court, “Go and sin no more.”6 . . .
The interpretation of the Constitution according to the original un- derstanding, then, is the only method that can preserve the Constitu tion, the separation of powers, and the liberties of the people. Only that ap- proach can lead to what Felix Frankfurter called the “fulfill ment of one of the greatest duties of a judge, the duty not to enlarge his authority. That the Court is not the maker of policy but is concerned solely with questions of ultimate power, is a tenet to which all Justices have subscribed. But the extent to which they have translated faith into works probably marks the deepest cleavage among the men who have sat on the Supreme Bench. The conception of significant achievement on the Supreme Court has been too much identified with largeness of utterance, and too little governed by inquiry into the extent to which judges have fulfilled their professed role in the American constitutional system.” Without adherence to the original understanding, even the actual Bill of Rights could be pared or eliminated. It is asserted nonetheless, and sometimes on high authority, that the judicial philosophy of original understanding is fatally defective in any number 6 See R. Berger, Death Penalties 82-83 n.29 (1982)
of respects. If that were so, if the Constitution cannot be law that binds judges, there would remain only one democratically legitimate solution: judi cial supremacy, the power of courts to invalidate statutes and execu- tive actions in the name of the Constitution, would have to be aban doned. For the choice would then be either rule by judges according to their own desires or rule by the people according to theirs. Under our form of gov- ernment, under the entire history of the American people, the choice be- tween an authoritarian judicial oligarchy and a representative democracy can have only one outcome. But this is a false statement of alternatives, for judicial interpretation of the Constitution according to its original under- standing is entirely possi ble. When that course is followed, judges are not a dictatorial oli garchy but the guardians of our liberties. . . .
Richard A. Posner1
Commentary magazine is distinguished for the lucidity and forthrightness of its articles and for its singleminded advocacy of a “neoconservative” phi- losophy built around the related themes of conservative social and cultural values, aggressive anti-Communism, and determined opposition to the egalitarian programs espoused by liberal Democrats and university radi- cals. I have been a faithful reader of the magazine for many years and my strong impression is that it does not knowingly publish articles that deviate from this party line. Yet the February 1990 issue contains two articles that take opposite positions on the issue of “originalism”—that is, interpretive fidelity to a text’s understanding by its authors. The tension between the articles is masked by the fact that one is about Robert Bork and the other is about musical performance and by the further fact that both embrace the neoconservative creed. Nevertheless there is a deep and illuminating fissure between them.
Bork Revisited, by Terry Eastland,2 public relations director of the De- partment of Justice for most of the Reagan era, including the period of Bork’s unsuccessful run for the Supreme Court, discusses three books about the Bork debacle, including Bork’s own. Eastland’s main purposes are to show that there really was an unprecedented as well as unsavory left-wing campaign against Bork’s confirmation, and that the Justice Department should not be blamed for Bork’s defeat, since the handling of the confirma- tion process had been assigned to the White House staff rather than to the Department. The latter point, while important to Eastland’s amour propre, is of no general interest, not least because Bork would have been defeated (it is clear in hindsight) even if his campaign had been handled more adroitly, which the Department of Justice might or might not have done. It is a fact that Bork was the target of a scurrilous scare campaign orchestrated by left-wingers, but Eastland is wrong to suppose that this is something new. Notably vicious political battles over Supreme Court nominees took place at the very outset of our constitutional history. This should matter to an originalist, and therefore to Eastland. He describes Bork’s book as “the best single volume we have on the great constitutional issues that now divide
1 Richard A. Posner, Bork and Beethoven, 42 Stan. L. Rev. 1365 (1990). 2 Commentary, Feb. 1990, at 39.