REASONING FROM CANONICAL LEGAL TEXTS
easily undone. Constitutional amendment is very difficult to accomplish and, for that reason, is very rare. And as a remedy for every erroneous
interpretation of the Constitution that has survived judicial challenge or that was originally promulgated by the U.S. Supreme Court, constitu-
tional amendment is out of the question.
Nevertheless, the practice of following precedents blessed by the Supreme Court in constitutional decision making, even when those
precedents are at war with the bound court’s best understanding of the Constitution, is well entrenched. Precedents are not accorded abso-
lute weight; they can be overruled, at least by the Supreme Court itself. But overruling constitutional precedents usually requires more than a show-
ing that those precedents misinterpreted the Constitution. The prece- dents must usually be shown to be harmful as well as wrong, and to
cause more harm than overturning them would cause.
In any event, even in a regime in which constitutional precedents compete with correct interpretations of the Constitution, no novel inter-
pretive methodology is required. One interprets the Constitution accord- ing to its authors’ intended meaning, and one interprets a judicial rule
glossing the Constitution according to its authors’ intended meaning. Whether one follows the Constitution or the precedent will depend on
whether there is a doctrine of precedent at all and, if so, whether it is absolute or not. And if there is a doctrine of precedent, but one that is
nonabsolute, whether one follows the Constitution or the precedent will depend on ordinary normative reasoning coupled with ordinary empiri-
cal reasoning about the factual grounds for the normative determination.
IV. Changes in the Rule of Recognition and the Identity of the Constitution’s Authors
The preceding section on how a doctrine of precedent might dictate that courts decide constitutional cases differently from what they believe to
be the meaning intended by the original authors of the Constitution opens up a more radical possibility in constitutional decision making.
For a doctrine of precedent to affect constitutional decision making, that
See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854–55 1992 joint opinion of O’Connor, Kennedy, and Souter; Chapter 2, supra, at note 47.
IS CONSTITUTIONAL INTERPRETATION DIFFERENT
doctrine must have authority equal to that of the Constitution. But where would that authority come from if it does not come from the Consti-
tution itself, perhaps through the notion of “judicial power” found in Article III?
Some believe that because the U.S. Constitution is “the supreme law of the land,” and because it nowhere mentions the doctrine of prece-
dent, much less bestows on it authority equal to that of the Constitution, precedents should never trump a court’s best judgment regarding the
Constitution’s intended meaning.
No matter how harmless or even beneficial the precedent court’s misreading of the Constitution, and no
matter how harmful its overturning, courts must always disregard mis- taken constitutional precedents.
Even if, however, the doctrine of precedent is nowhere to be found in the Constitution, there is an alternative source for its possible authority
in constitutional cases. Its authority may derive from the same source as the Constitution’s itself, including the Constitution’s foundational
provision, Article VII, describing the process of ratification. That source is, of course, acceptance by the governed. Such acceptance is the “turtle”
on which the authority of Article VII rests and, with it, the authority of the remainder of the Constitution and the statutes, treaties, and other
governmental decisions that it authorizes. And if acceptance is the source of the Constitution’s authority, it can be the source of authority for the
doctrine of precedent.
But hence the more radical possibility to which we alluded. Just as acceptance lies at the base of the Constitution’s authority, so too can
acceptance of mistaken precedents alter the meaning of the Constitution. Nothing, of course, can alter what the 1789 or 1868 authors of constitu-
tional provisions intended them to mean. If, however, a Supreme Court decision misinterprets a provision – but the governed then accept that
decision as the meaning of their fundamental law – it is as if the pro- vision’s language had been appropriated by a new constitutional author
and used to express an intended meaning different from that of the orig- inal authors. In such a case, the meaning of the constitutional provision
See John Harrison, The Power of Congress over the Rules of Precedent, 50 Duke L.J. 503; Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential
Effect of Roe and Casey?, 109 Yale L.J. 1535, 1570–82 2000.
See Gary Lawson, The Constitutional Case against Precedent, 17 Harv. J. L. Pub. Pol’y 23 1994.