A rhetorical question (and faint-hearted originalism)

[Richard Dougherty]

Well, I'll take a shot at it.  What do you think of his dissent in Union Gas? Here he explicitly links judicial  precedent with statutory precedent, and indeed with the text of the Constitution.<<... the mere venerability of an answer consistently
adhered to for almost a century, and the difficulty of changing, or
even clearly identifying, the intervening law that has been based on
that answer, strongly argue against a change. As noted by the Welch
plurality, "Hans has been reaffirmed in case after case, often
unanimously and by exceptionally strong Courts"; its reversal "would
overrule at least 17 cases, in addition to Hans itself" and cast doubt
on "a variety of other cases that were concerned with this Court's
traditional treatment of sovereign immunity." 483 U.S., at 494, n. 27.
Moreover, unlike the vast majority of judicial decisions, Hans has had
a pervasive effect upon statutory law, automatically assuring that
private damages actions created by federal law do not extend against
the States. Forty-nine Congresses since Hans have legislated under that
assurance. It is impossible to say how many extant statutes would have
included an explicit preclusion of suits against States if it had not
been thought that such suits were automatically barred. Indeed, it is
not even possible to say that, without Hans, all constitutional
amendments would have taken the form they did. >>
Stare decisis really only has any bite in the second circumstance you
outline, no?  The first use is (mostly) dispositive for lower
courts, but not for the Supreme Court, in Scalia's view (I think),
though it may become the rule at some point (such as in Union
Gas).  What I mean by "every interpreter" is that unless you adopt
precedent as your lone guiding star in interpretation then you will be
compelled to think about what weight to give it.Richard J. Dougherty
University of Dallas
-----Original Message-----
From: "Mitch Berman" <MBerman at law.utexas.edu>
Sent 8/22/2007 10:29:14 AM
To:
"Mitch Berman" <MBerman at law.utexas.edu>, "Richard Dougherty"
<doughr at udallas.edu>, "Rosenthal, Lawrence"
<rosentha at chapman.edu>, "Ilya Somin" <isomin at gmu.edu>,
"Marty Lederman" <marty.lederman at comcast.net>
Cc: "Volokh, Eugene" <VOLOKH at law.ucla.edu>, "Sanford Levinson" <SLevinson at law.utexas.edu>, CONLAWPROF at lists.ucla.edu
Subject: RE: A rhetorical question (and faint-hearted originalism)From: Mitch Berman Sent: Tuesday, August 21, 2007
6:09 PMTo: Richard Dougherty; Rosenthal,
Lawrence; Ilya Somin; Marty LedermanCc: Volokh, Eugene; Sanford
Levinson; CONLAWPROF at lists.ucla.eduSubject: RE: A rhetorical question
(and faint-hearted originalism) Well, perhaps. But I’d like to hear
more argument than I am aware of Scalia providing to explain why this is an
exception to originalism that *has*
to be made, as opposed to an exception that is useful (perhaps very useful) to
make.  Insofar as it’s the latter, then my worry still stands, I
think: why this putatively useful exception but no others? Here we should distinguish two functions
of stare decisis.  One is to prevent a court from revisiting a prior
decision at all.  When stare decisis functions in this way, the court
doesn’t bother to examine whether the first decision was correct or
not.  I’m prepared to concede arguendo that our system requires
every judicial interpreter to adhere to a practice of this sort.  But Scalia
also allows stare decisis to keep him (sometimes) from overturning prior
decisions even when he is already persuaded that that decision was incorrect
– incorrect, that is, as measured against an originalist standard. 
I’d need to hear more about why that use of stare decisis is something
that every interpreter is somehow compelled to accept. Incidentally, I suppose that this account
of Scalia’s commitment to originalism would support an exception to
originalism only for entrenched, established *judicial*
precedents, not for equally well entrenched, established practices of the
polity that have never received judicial blessing.  Or am I
misunderstanding? Mitch BermanThe University of Texas From: Richard
Dougherty [mailto:doughr at udallas.edu] Sent: Tuesday, August 21, 2007
5:35 PMTo: Mitch Berman; Rosenthal,
Lawrence; Ilya Somin; Marty LedermanCc: Volokh, Eugene; Sanford
Levinson; CONLAWPROF at lists.ucla.eduSubject: Re: A rhetorical question
(and faint-hearted originalism) Might it be accurate to
say that Scalia's commitment to originalism is a commitment to the best
assurance that we will abide by the principle of the rule of law?  Thus,
when he sees that there is an entrenched, established precedent, then the rule
of law might itself call for adhering to the precedent.  He lays out that
argument, I think, in his response to Tribe, and also e.g., in his opinion in Union Gas.  I'm thinking something
like that is going on his opinion in the line-item veto case as well. 
What he does emphasize is that this is to be understood as an exception to
textualism.  But it is an exception that perhaps every interpreter has to
make, when serving as a judge or justice.  (It may not be something that
academics have to accept, as.we have been discussing.)
Richard J. Dougherty
-----Original Message-----
From: "Mitch Berman" <MBerman at law.utexas.edu>
Sent 8/21/2007 3:19:14 PM
To: "Rosenthal, Lawrence" <rosentha at chapman.edu>, "Ilya
Somin" <isomin at gmu.edu>, "Marty Lederman"
<marty.lederman at comcast.net>
Cc: "Volokh, Eugene" <VOLOKH at law.ucla.edu>, "Sanford Levinson"
<SLevinson at law.utexas.edu>, CONLAWPROF at lists.ucla.edu
Subject: RE: A rhetorical question (and faint-hearted originalism)Just to be clear, I did not mean to suggest that there's no meaningfuldifference between Scalia's approach and Tribe's.  Of course there is. Imeant only to suggest that the differences between Scalia and hisperceived opponents might be of degree more than of kind, and that thisis obscured by reference to a "fully nonoriginalist jurisprudence."  (Tobe sure, the difference of degree can be very large.)If we insist on maintaining a dichotomy between originalist andnonoriginalist, then, by swallowing that first pragmatically drivenexception, Scalia might find himself on the wrong side of the divide.-----Original Message-----From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]Sent: Tuesday, August 21, 2007 3:03 PMTo: Mitch Berman; Ilya Somin; Marty LedermanCc: Volokh, Eugene; Sanford Levinson; CONLAWPROF at lists.ucla.eduSubject: RE: A rhetorical question (and faint-hearted originalism)In the academic world, it may be true that virtually everyone affordssome respect to original meaning, at least when asked.  But I do notthink that means that there is no meaningful difference between JusticeScalia's "one- exception originalism" (to use Mitch Berman's phrase) andnonoriginalism, at least in the real world of constitutional litigation.I recently had occasion to read Larry Tribe's brief in Washington v.Glucksberg.  It is a very fine brief in many respects.  But when itcomes time to respond to Washington's historical arguments, the Tribebrief does no more than cite precedents standing for the propositionthat due process protection is limited to historically protected rights.No effort is made to explain what weight is to be granted to originalmeaning or historical practice.  In the Tribe brief, all that matters isthat the decision to end one's life is an important aspect of individualautonomy, and individual autonomy, in turn, had been granted protectionby various precedents (although those precedents had not given rise to awidespread and settled practice of permitting assisted suicide).  Afterreading briefs of that kind, perhaps Justice Scalia can be forgiven forbelieving that something called nonoriginalism is alive and well, andthat a jurisprudence that permits departures from original meaning asdefined by historically accepted practices only for the most substantialreliance interests is meaningfully different from the approach reflectedin the Tribe brief and its like.Larry RosenthalChapmanUniversitySchool of Law-----Original Message-----From: Mitch Berman [mailto:MBerman at law.utexas.edu]Sent: Tuesday, August 21, 2007 12:18 PMTo: Rosenthal, Lawrence; Ilya Somin; Marty LedermanCc: Volokh, Eugene; Sanford Levinson; CONLAWPROF at lists.ucla.eduSubject: RE: A rhetorical question (and faint-hearted originalism)I think I agree with all of what Larry Rosenthal writes here, but foruncertainty regarding what he takes nonoriginalism to be, as when heattributes to me the question:  "if one starts heading down a pragmaticpath, why not go all the way to nonoriginalism?"If nonoriginalism is merely the denial of originalism (as I believe itis), and if originalism is a theory that requires fidelity to theoriginal meaning (as I also believe it is), then to license anydeparture from original meaning is already to endorse nonoriginalism,and the question becomes: Where should we pull up *within*nonoriginalism land?If you think this is just a little too cute, or is a debater's point,I'd ask what is thought to be captured by the offered contrast betweenScalian "one-exception originalism" (as I like to call it) and whatProfessor Rosenthal calls a "fully nonoriginalist jurisprudence."  Isthe latter supposed to be a theory that accords no respect to originalmeaning?  If so, then I submit that it has zero adherents.  (Virtually?)all self-professed nonoriginalists take original meaning seriously.  Thequestions that divide theorists are "how seriously" and what sorts ofconsiderations can override or displace original meaning.  And if that'sso, then I ask whether the place that Scalia (and perhaps Bork) choosesto rest within nonoriginalist territory can be defended against otherproposed resting spots with anything stronger than necessarilycontingent and contestable pragmatic judgments.  It's pretty clear, Ithink, that Scalia and most other self-described originalists who'dgrant an exception for stare decisis do not acknowledge that this is thestate of play between themselves and their opponents.Mitch BermanThe University of Texas
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