Verification Re: your understanding of precedent

[Tom Grey]

Thanks to Sandy for offering such distinguished support to this retired
conlawprof, but I'd just qualify what he says a little. Originalists and
textualists are going to make the sharp distinction he does between
fidelity to the constitution, and following precedent -- which latter is
then justified by the distinct formal virtue of determinacy (facilitating
coordination, giving notice, protecting expectations, constraining
discretion -- all that). But proponents of a living or (roughly) common law
constitution are going to think the precedents (executive and legislative
practices as well as judicial precedents, on most accounts) partly shape
the actual law of the constitution, to which fidelity is pledged in the
constitutional oath.


>Needless to say, I strongly agree with Tom Grey's posting that there is no
>logical linkage at all between adherence to precedent and fidelity to the
>Constitution.  One cannot, therefore, argue that a precedent-conforming
>justice is more legalistic than a precedent-defying judge whose arguments
>are couched in what Tom calls "fidelity-to-the-Constitution" language (and,
>of course, almost no judge has ever justified deviation from precedent in
>any other kind of language).
>
>Sandy Levinson


-- Tom Grey     Stanford Law School    tgrey at law.stanford.edu