This point is crucial to the positive turn, but it has been treated so well by so many scholars that I will only briefly recapitulate it. The key is that the textualist argument against stare decisis is too fast. Article III empowers judges to decide cases and implicitly obliges them to respect the law, while Article VI affirms that the Constitution is a binding and supreme form of law. But an originalist must understand these provisions, as they were originally read, in the context of the common law. 44 44 See McGinnis & Rappaport, Previous, op. cit. Cit. note 40, pp. 823-29 (“There are strong reasons to conclude that the generation of drafters would have understood that the judiciary [in Article III] included the minimal notion of precedent.”); Sachs, Backdrops, op. cit. Cit. note 42, p. 1.
1865 (stating that precedents were “one of the well-understood common law substantive assumptions” at the time the drafters wrote (internal quotation marks omitted) (quotes Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535, 1577 (2000))). Second, this type of non-exclusive originalism makes sense and captures the animated justifications of originalism. Remember, the fact is in any case that decisions embodied in the original sense are decisive. To the extent that the original Constitution clearly excluded the application of precedents 65 to 65, this would be the case, for example, if one accepted the arguments of Lawson, Mostly Unconstitutional, op. cit. Cit. note 39, or Paulsen, Corrupting Influence, loc.
cit. Note 39. Close or any other source, this choice would be decisive. (Note that even the most ardent defenders of precedents do not believe that constitutional precedents should prevail over subsequent constitutional amendments that nullify them—such as the Eleventh Amendment Chisholm v. Georgia, 66 66 2 U.S. (2 Dall.) 419 (1793). Close as the Fourteenth Amendment Dred Scott v. Sanford, 67 67 60 U.S. (19 How.) 393 (1857). Close when the Sixteenth Amendment struck down Pollock v. Farmers` Loan & Trust Co., 68,68,157 U.S.
429 (1895). and when the Twenty-sixth Amendment overturned Oregon v. Mitchell. 69 69,400 U.S. 112 (1970); see Burt Neuborne, The Binding Quality of Supreme Court Precedent, 61 Tul. 991, 993 & n.7 (1987) (recognition of the legitimacy of annulling these decisions by amendment); see also Stephen E. Sachs, The “Constitution in Exile” as a Problem for Legal Theory, 89 Notre Dame. L. Rev 2253, 2277 (2014) [hereinafter, Sachs, Constitution-in-Exile] (wonders what would happen to Brown v. Board of Education if the Fourteenth Amendment were repealed). Close) Let us pause to examine the word “discretion”, which is ambiguous in this context. As Dworkin notes, there are at least three forms of judicial discretion.
72-72 See Dworkin, The Model of Rules, note 21, pp. 32-33. Close In what Dworkin calls its weak form, discretion means that “the standards that a public servant must apply cannot be applied mechanically, but require the application of judgment.” 73 73 Id. of 32. Close In what he calls another weak form, discretion means that “an official has the final decision-making power and cannot be examined and overthrown by any other official.” 74 74 id. Close In its strong form, discretion means that the official “is simply not bound by the standards set by the authority concerned”. 75 75 Id. bei 33. Close At the very least, the constitutional provisions are intended to eliminate discretion in both its first weak form and its strong form. Legal formalism can be opposed to legal instrumentalism, a vision linked to American legal realism.
[16] Instrumentalism is the idea that creativity in the interpretation of legal texts is justified to ensure that the law serves good public order and social interests, although legal instrumentalists may also see the end of law as a promotion of justice or the protection of human rights. It also calls for the exercise of judicial discretion. Legal formalists, however, counter that giving judges the power to change the law to serve their own political ideas undermines the rule of law. This tension is particularly interesting at common law, which depends on current jurisprudence. The “claim to glory” of common law systems is that the task of developing and updating the law is best accomplished gradually by courts that are in close contact with social, economic and technological realities, rather than by political bodies that deal with legal reforms from time to time. Thus, legal realism or “relationalism” has been preferred in some common law jurisdictions, where the type of legal codification associated with civil law is virtually unknown. [ref. However, there is a third way of judging originalism – and constitutional theories in a broader sense – by examining our positive law, which is embodied in our legal practice. We should ask ourselves: is originalism our law? If not, what happens? This question has been described as “one of the two most difficult questions in the philosophy of law”.
4 4 Larry Alexander, Constitutional Theories: A Taxonomy and (Implicit) Critique, 51 San Diego L. Rev. 623, 642 (2014) [hereinafter Alexander, Theories]. Alexander`s other most difficult question, “how it is possible for law to be normative,” is addressed by Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. (forthcoming 2016) (submitted to Columbia Law Review) and discussed below in Section III.A. Close But if it can be answered, it has the potential to refocus the debate and allow both sides to move forward. This step is the “positive turning point”.
5 5 The “positive sentence” recalls the basic principles of legal positivism: the content of the law is determined by certain contemporary social facts and moral considerations do not necessarily play a role in the veracity or falsity of legal statements. See John Gardner, Legal Positivism: 5 1/2 Myths, 46 am. J. Juris. 199, 222–25 (2001) [hereinafter Gardner, Legal Positivism] (“According to soft legal positivists, there is no law that depends on substance for its validity, only by virtue of the nature of the law, that is, necessarily.”); Leslie Green, Positivism and the inseparability of law and morality, 83 N.Y.U. L. Rev. 1035, 1056–57 (2008) (deals with the moral fallibility of law); Brian Leiter, Why Legal Positivism? 1 (2009) (unpublished manuscript), ssrn.com/abstract=1521761 (filed with Columbia Law Review) (discusses the positivist “slogan” that “there is no necessary connection between law and morality”). But this essay relies on lawyers` assumptions rather than technical jurisprudence. See footnote 80. In fact, even some “natural law theorists” agree that many features of a legal regime depend on the social facts of a particular society.
See, for example, John Finnis, The Truth in Legal Positivism, in The Autonomy of Law 195, 195 (Robert P. George ed., 1996) (discusses the “variability and relativity of law to time, place, and politics”). Narrow formalism has been termed “autonomous discipline”[10] in reference to the formalistic belief that judges need only facts and law, with all normative issues such as morality or politics irrelevant. [11] When judges simply apply the rules mechanically and uncontroversially, it protects them from criticism. For this reason, formalism has been called the “official theory of judgment.” [12] Some scholars deny that there ever existed a legal formalism. [13] Sachs argues that this belief is “the official history of American law” and “is reflected in the attitudes of lawyers and academics.” 94 94 Id. at 870. Close As he says, “If you go to court in a constitutional case and say, `Well, judges, the original constitution is against us, but we replaced it with an informal amendment in 1937,` you will lose.
95 95 Id. at 871. Close This is ultimately a positive statement about our lower-order practices, which I will look at shortly. Similarly, deciding cases on the basis of precedent is not contrary to Article V by creating some kind of unauthorized constitutional amendment. 47 47 Thanks to Larry Alexander for this challenge. Relying on precedents to decide a case instead of first-rate legal documents is no different from a previous judgment and res judicata law instead of first-rate legal documents. If the binding nature of judgments is recognized as compatible with the original Constitution (as it should be), 48 48 See William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1809 (2008) [hereinafter Baude, Judgment Power] (“[T]he judicial power is the power to make binding judgments.”). Second, one must be open to historical arguments that precedents are also necessary or permissible. 49 49 McGinnis & Rappaport, Previous, cited in footnote 40, p. 829 (by analogy).
Close The presence of these atextual cases underscores the important point that this article`s distinction between rules and norms does not follow the “distinction between interpretation and construction” associated with the “New Originalists.” 42 42 See, for example, Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. 95, 100 (2010). Professor Lawrence Solum and others have distinguished constitutional “interpretation”—”the activity of discovering the linguistic meaning of the various articles and additions that make up the Constitution of the United States”—from constitutional “construction” that “gives legal effect to the semantic content of the [Constitution`s] text.” 43 43 id.