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Sunday, July 09, 2006

Precedent and Symmetry

Below, co-blogger Russell Covey suggests that it is problematic that the Supreme Court Justices are free to disregard Supreme Court precedents while everybody else is not. I agree with him that such an asymmetry would be troubling, but I think he is attempting to solve it in the wrong way. Given a conflict between what the Constitution says and what the Supreme Court says that the Constitution says, most people are not bound to follow the latter.
Lower federal court judges are an arguably special case, since the Constitution explicitly assigns them the role of being an inferior tribunal, which arguably implied at the time (and implies now) that they are bound to the law as announced by their superior interpreters. But executive branch officials are not required to implement Supreme Court precedents in conflicts between future parties. A judgment binds the parties to a case (and sometimes various parties in privity with them) but not doesn't (because it can't) change what the legal authorities (statues, constitutions, treaties, compacts, the common law) in question actually require. This was Lincoln's argument about Dred Scott, and it seems just as true today.
Thought experiment: A number of members of Congress propose a law called the sedition act, which would punish various forms of non-violent anti-government speech notwithstanding the First Amendment. Other members of Congress oppose the legislation on the grounds that it is unconstitutional. After some debate, a vote is taken and the pro-sedition side wins. In future years, are the anti-sedition Congressmen forbidden to vote to overrule the legislation on the grounds that it is unconstitutional? When Congress considers extensions to the bill, are the anti-sedition Congressmen forbidden from voting against such extensions on the grounds that they continue to believe the law to be unconstitutional? Surely not. Their oath is to the Constitution, not to what a majority of their brethren think the Constitution says.

Posted by Will Baude on July 9, 2006 at 12:34 AM in Constitutional thoughts | Permalink


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As I said, I'm not familiar with the scholarship surrounding the decision itself. I'll take your word for it that the consensus is that Dred Scott was legally wrong under the then-applicable law. (Incidentally, which of Lincoln's acts do you suggest was in violation of Dred Scott qua Dred Scott? (As precedent.))

As noted, however, I don't care about that. Yes, the president is obliged to "extend an erroneous decision of the Supreme Court to new facts and circumstances." I tried to withdraw from this discussion before, begging off being up on the scholarship. So I'll make this my last comment on the matter. First, See Solum's discussion, which refutes your claim (at least for a subclass of decisions) that a respect for precedent is the equivalent to suggesting that "the Supreme Court is the source of law."

Second, see my previous comment about the lack of an authoritative determination of this question in the text of the constitution, and the fact that the modern Supreme Court still seems to think it has the power to make binding determinations of law.

Finally, and I think most importantly, think about the chaos that would ensue if government officials weren't bound to accept some authoritative interpretation of the constitution. Do you really want the executive branch to take every supreme court precedent and flout it in the future? Imagine a world where the executive doesn't experience itself as "bound" by Miranda, or by Brown. Structurally, the Supreme Court is the entity which serves the function of resolving constitutional disputes. Someone's gotta do it.

Or, in Solum's words:

"At one extreme, we can imagine that we would entitle each and every government official the authority to decide for herself what the Constitution means. The problems with that system are obvious—it would create uncertainty, unpredictability, and instability that would undermine the rule of law. Various other possibilities exist. We could give every judge the power to interpret the Constitution de novo, with no horizontal or vertical stare decisis. That system would not be as chaotic as one which gave the authority to every official—high and low—but it would, nonetheless, be a real mess. We could imagine a system in which every Supreme Court justice has interpretive authority, but a doctrine of vertical stare decisis binds the lower courts. That system would be more stable, but would still involve shifts in constitutional meaning—as the composition of the Court changes and as individual Justices change their minds. And at the other extreme from total hermeneutic polycentricism, would be a system in which the decisions of the Supreme Court which respect that text and original meaning are given binding effect—granting earlier Supreme Courts the power to constrain the interpretations made by later Supreme Courts. This final option maximize the rule-of-law values of stability, predictability, and certainty."

The same can be said about binding other government branches.

Posted by: Paul Gowder | Jul 11, 2006 10:36:19 PM

Paul, I'm not sure what to say. Yes, Dred Scott is conventionally thought of as wrongly decided, and I share in that belief. Read the dissents, and read Lincoln on the matter. For that matter, Cass Sunstein had a nice lecture a few years ago on the "myths" of Dred Scott that is relevant and interesting.

No one has suggested that Lincoln wasn't "bound to obey" the Dred Scott decision. Lincoln admitted as much--the particular decision wouldn't be interfered with or obstructed. But that's not what you propose. Stated simply, you say that Lincoln was legally obligated to extend an erroneous decision of the Supreme Court to new facts and circumstances. And you don't give us any reason for that, but that the Court sometimes says that that's what the law requires. How is it that Lincoln was legally obligated to extend a decision of the Supreme Court that was erroneous? Is the suggestion that the Supreme Court is the source of law, instead of the Constitution?

Posted by: Thomas | Jul 11, 2006 7:40:08 PM

Under the pre-civil war Constitution? The one that explicitly provided for slavery? The one that said that slaves counted as 3/5 of a person for voting purposes? The one that explicitly provided that slavery couldn't be taken up by the legislature for a period of years?

I don't know. I haven't gone over the scholarship about Dred Scott in detail. Obviously, it was morally wrong. But legally? Under the pre-civil-war, pro-slavery constitution? On what basis do you seem to believe that it was clearly wrong? Obviously, when the 13th Amendment was passed, it became clearly wrong, but beforehand?

That being said, it doesn't matter. On the theory that I'm proposing, the president was legally bound to obey even an incorrect Supreme Court decision. Lincoln's failure to do so -- to the extent his actions can be understood as a violation of the Supreme Court's ruling in Dred Scott (itself open to question) -- was an act of civil disobedience, of justified illegality.

Obviously, this only goes so far. We can concieve of exceptions (the Supreme Court decides that the constitution means that John Roberts is King) where this would be stupid, but then again, the same could be said of this hypothetical Presidential interpretative power (George Bush is King?).

Posted by: Paul Gowder | Jul 11, 2006 2:51:57 PM

You haven't offered any reason for thinking that what Lincoln did in the examples I gave was contrary to his legal duties (illegal). How could those acts be illegal, given that Dred Scott was wrongly decided?

Or are you saying that Dred Scott was rightly decided?

Posted by: Thomas | Jul 11, 2006 2:25:22 PM

Thomas: "not consistent with the constitution" =/= "wrong" (always).

The revolutionary war was illegal. It was not wrong.

Likewise with Lincoln's freeing the slaves.

This is why I compared your use of Dred Scott to Godwin's law. By suggesting that the president can't -- legally -- hurl aside settled constitutional law, you've got me supporting slavery.

Posted by: Paul Gowder | Jul 11, 2006 7:37:34 AM

No, Paul, your position is that Lincoln was obliged to acquiesce in Dred Scott, and wrong to resist it. He was wrong, in your view, to recognize the citizenship of free blacks. He was wrong in restricting slavery in the territories. That's your view--and I think simply stating it clearly demonstrates how wrong-headed it is.

Posted by: Thomas | Jul 11, 2006 12:28:45 AM

No, Thomas, it's not clear that my theory gives the wrong answer on Dred Scott. Dred Scott was overruled by a war. Not by ordinary presidential powers testing the constitution.

Posted by: Paul Gowder | Jul 11, 2006 12:12:19 AM

Paul, how's that? Why isn't Dred Scott relevant? I mean, Brown is waved around again and again, but I've never seen anyone react as you've reacted here. There's a reason that canonical and anti-canonical cases are waved around--because they mean something. A constitutional theory which gives the wrong answers on the canon and anti-canon is thought to be mistaken. It is clear, isn't it, that your theory gives the wrong answer on Dred Scott?

Also, I think it might be a bit much to blame Abraham Lincoln, who died April 15, 1865, for any irregularities in the adoption of the 14th amendment, which was approved by Congress in June 1866. In fact, given the surrender by Lee came just days before Lincoln's death and that the war continued in some small part, I'd think that most any sentence that begins "Lincoln had just won a war" would end by noting that he promptly died.

Posted by: Thomas | Jul 11, 2006 12:03:46 AM

Thomas: Lincoln had just won a war. Among other things that wouldn't be strictly constitutionally kosher in the process, he forced a significant number of states to ratify various constitutional amendments at gunpoint. Whatever else that was (like "good," "justified," and "necessary," perhaps), it wasn't constitutional fidelity.

Waving Dred Scott around like a dead baby has got to be the constitutional theory version of Godwin's law.

Posted by: Paul Gowder | Jul 10, 2006 11:34:30 PM

I'd think that Will has more than Lincoln's words behind his position--he actually has Lincoln's argument available to him. Lincoln's position is set out in the famous Lincoln-Douglas debates and in his first inaugural address.

Paul's position, as I understand it, is that the Supreme Court is the primary interpreter of federal law, including constitutional law, and that the other branches are inferior in that task and must defer to the Court. He also says that this isn't something set out in the constitution itself, but is a directive from the Court. Why should that be given deference by the other branches? Why shouldn't they arrogate to themselves such power as they believe appropriate?

Also, I'm not sure how saying that a particular power is delegated to one body or another under the constitution allows one to avoid interpretation. The House, when considering impeachment, has the power to interpret the constitution without review by other co-equal branches, but it is no less interpreting the constitution than the other branches. Similarly, the executive, when considering its own powers (as in, for example, OLC opinions) is interpreting the constitution no less than the Court does.

Finally, it would be good to say a word on behalf of Lincoln's lawlessness, something Paul referred to. I can't help but wonder if he's referring to Lincoln's signing of legislation that, contrary to Dred Scott, restricted slavery in territories, or if perhaps he's referring the Lincoln administration's granting of passports and other documents to free blacks in recognition of their citizenship, again contrary to the Supreme Court's decision in Dred Scott. Dred Scott, Paul would remind us, was the law, and Lincoln had an obligation to follow its logical implications in all matters great and small--despite the fact that Dred Scott was profoundly mistaken as a matter of law. What an unusual concept of fidelity that suggests.

Posted by: Thomas | Jul 10, 2006 10:35:28 PM

"the legal realist mistake of confusing what the court will bind one to do in the future with what one's legal obligations actually are ex ante

Why is this is a "mistake?" "

seconded. i'm not sure what "legal realism" has to do with it, but i don't see the mistake.

Posted by: andy | Jul 10, 2006 6:31:47 PM

"Of course, he'd be insane to try and tax-protest himself, because when he does go before a court, he will become bound and punished."

If he is not bound by the supreme court's precedent, then why will he get sanctioned and penalized for ignoring applicable law?

this is almost like saying that one is not bound by an opinoin providing that "poisoning someone's drink and cuasing his death is murder" until he actually gets to court. but, if he is only bound when he's brought before the judge, and was not bound at the time that he committed the poisoning, how can he be committed of a crime.

i do think that parties are "bound" by supreme court precedents, even if they are not parties to a litigation. perhaps we are using bound/bind in different senses. and i don't know what a "legal realist" is, so i doubt i am one.

Posted by: andy | Jul 10, 2006 6:20:20 PM

the legal realist mistake of confusing what the court will bind one to do in the future with what one's legal obligations actually are ex ante

Why is this is a "mistake?"

Posted by: Paul Gowder | Jul 10, 2006 6:19:46 PM

Gah, Will, you can't use the exercise of an unconditional constitutional power (to pardon, to veto) or a power that is arguably or functionally unconditional (to impeach) to impute claims about constitutional interpretative authority to their exercisers! People who exercise that kind of power don't NEED to claim the authority to interpret the constitution.

Posted by: Paul Gowder | Jul 10, 2006 6:14:24 PM

Maybe you're reading my claim too broadly. Yes, I say the tax protester who is not before the court is not yet bound by the court's interpretation. Of course, he'd be insane to try and tax-protest himself, because when he does go before a court, he will become bound and punished.

But the point is not to commit the legal realist mistake of confusing what the court will bind one to do in the future with what one's legal obligations actually are ex ante.

Posted by: William Baude | Jul 10, 2006 6:13:05 PM

Nobody (except Michael Stokes Paulsen in his heady days) claims that decisions aren't binding. The question is who they bind. I claim they bind the parties, and to a lesser extent the inferior courts. You seem to claim they bind everybody.

Posted by: William Baude | Jul 10, 2006 6:09:16 PM

that sounds like one of the arguments that tax protestors come up with. maybe i'm missing something here. but if the supreme court decides that the 16th amendment (i.e. permitting the income tax) is valid, notwithstanding the challenge that ohio never ratified it, or some bizarre reason like that, the only person who is "bound" is the person before the court?

if that is so, why do we so freely penalize people who ignore these interpretations, if they bind?

i think there may be a difference between executing the law (there is no doubt that, in executing the law, the president necessarily desire what the law "is," to some extent) and having the ultimate authority to decide what the law is (which is, for better or worse, the supreme court's domain).

surely, congress and the president do "interpret" the law sometimes (how else can they go about their jobs?), but i don't think that changes the fact that the court is the ultimate arbiter of those questions, and that, in a sense, we are all in front of the court (even if not parties to a litigation matter)-- if the supreme court says that the 16th amendment is valid notwithstanding the fact that ohio never ratified it, that's binding on you even if you werne't a party to the case.

Posted by: andy | Jul 10, 2006 6:09:00 PM

It didn't make sense for Martin Luther King to defend the sit-ins on the ground that he was following the constitution. For one thing, they were supposed to be acts of civil disobedience. The premise of civil disobedience is that you violate an unjust law and take the lumps, not that you insist that your action was legal. For another thing, sit-ins in private businesses are not constitutionally protected under anyone's interpretation of the constitution -- it's not even on the map. Not even my super-radical First Amendment, which is more vigorous than even Justice Marshall and Justice Douglas would have it (and probably about the same as Jefferson) would sit-ins in private resturants, absent some functional equivalent to a public forum thing, be protected.

And there's a difference between saying a decision is wrong and saying it's not binding.

Posted by: Paul Gowder | Jul 10, 2006 6:03:45 PM

Right, but.

How does the Supreme Court arbitrate questions about what the laws require? By deciding cases brought by particular parties within its juridiction, then issuing judgments that bind those parties. So the answer is, sometimes the Supreme Court decides what the laws require (see, e.g., Brown v. Board). Sometimes the President decides (see, e.g., Jefferson's pardons). Sometimes Congress decides (see, e.g., the impeachment of President Clinton or Justice Chase). Sometimes the President decides, and then the Supreme Court decides something else (see, e.g., the Watergate Tapes Case). And so on.

The mistake is to say that just because the Supreme Court can issue final binding judgments to parties who are properly before the court, that therefore everybody should act as if they were before the court at all times. They aren't.

Posted by: William Baude | Jul 10, 2006 6:01:23 PM

"(because it can't) change what the legal authorities (statues, constitutions, treaties, compacts, the common law) in question actually require."

sure...but *who* decides what the laws actually "require"? the supreme court, no?

i don't get the "supreme court can't change what the laws require" argument, if the s ct is the ultimer arbiter of that determination.

Posted by: andy | Jul 10, 2006 5:56:59 PM

I don't think Jackson-- if the story is to be believed-- should be read as questioning the Court's authority so much as its physical power. At any rate, in answer to a previous comment, I should think it not at all radical to suggest that private citizens have at least as much power to differ from the Supreme Court on questions of constitutional law as the president does. How else does it make sense for law professors to write articles criticizing Supreme Court decisions, or for Martin Luther King to defend the sit-ins on the ground that he is following the Constitution?

Obviously, in practical terms this power may not amount to much because the reviewing courts are supposed to use judicial interpretations of the constitution in making decisions about who to lock up.

Posted by: William Baude | Jul 10, 2006 5:43:55 PM

Also briefly: it's hardly irrelevant to judging Jackson's authority on the scope of the Supreme Court's power that he thought it didn't have the authority to directly order him to stop removing Cherokees. Likewise, if we're basing out claims about the way power was allocated under the Constitution on appeals to the authority of Jefferson, it's hardly irrelevant to ask whether Jefferson should have credibility, since he had at least one wildly wrong view of the ability of the states to nullify federal legislation. And forgive me for suggesting that the civil war featured a lot of, ahem, adventurous interpretations of the Constitution.

Posted by: Paul Gowder | Jul 10, 2006 5:31:27 PM


Almost any president or legislator who had any well-considered views on constitutional law can probably be attacked for some other, plausibly separate view that he had. So if we're going to impugn Jackson for apocrypha, Jefferson for believing in free speech, and the reconstruction Congress for having won the civil war, we're likely to eliminate any possible source of authority from past practice. [We can play the same game for the Supreme Court, too, of course. Rehnquist voted with the majority in Dickerson, but he also voted with the majority in Bush v. Gore. Warren signed Cooper v. Aaron, but also . . . (insert your least favorite decision of the Warren Court here.) And so on.]

Posted by: Will Baude | Jul 10, 2006 5:11:47 PM


I may step down from this discussion then until I get a chance to read the Stokes stuff. (Which might be months, so don't hold your breath.)

I hasten to point out, however, that on the breadth of your argument, the departmentalism literature wouldn't be enough. Your argument above appears to be not only that the President and Congress have the power to disregard a non-res judicata Supreme Court ruling, but that ordinary citizens do too. (So much for civil disobedience, I suppose.)

I'll also hasten to point out that all three of your classic examples are not on point. The veto and the pardon are generally understood as absolute powers, or as close to absolute as you can get. The fact that the Presidents in question used Constitutional arguments to justify an action that didn't require Constitutional arguments to be legal is of miminal value in determining what they actually thought the binding effect of the Court's constitutional rulings was. The Revels thing is more interesting (and I'm not familiar enough with it to discuss), and I think I'll add the recent Primus HLR article to my reading list. Nonetheless, this was immediately after the civil war, when the Constitution was in crazy flux.

Plus, the legendary Jackson of "let them enforce it" is hardly an authority on the consensus view of Supreme Court power. Likewise, the Alien and Sedition acts not only (as I recall) never made it to the Supreme Court (so Jefferson wasn't disputing any Court decision), AND Jefferson had already tried one tactic that would be clearly constitutionally un-kosher under modern standing (the Kentucky and Virginia Resolutions) to get rid of them, so the authority of his constitutional leaps in this area is a bit questionable.

Posted by: Paul Gowder | Jul 10, 2006 4:26:18 PM


If you think Marbury supports your view rather than mine, then you misunderstand either me or Marbury. Marbury says that it is emphatically the province of the judiciary to say what the law is. Sure thing. The judiciary is both authorized and required to decide questions of constitutional law when cases are brought by parties with standing. What we're arguing about is the effect of those cases. I say that the answer is to be found in the traditional law of judgments, which empowered courts to bind the parties to the case as to a particular controversy, not to set forth any sort of document that was the "law of the land".

Anyway, a blog-comment section may not be the place to rehash this, but the academic literature on departmentalism and stare decisis covers this pretty well. Michael Stokes Paulsen's stuff is one place to start, but he takes this argument too far (since he supports, wrongly, Lincoln's actions in Merryman.)

For one thing, the Supreme Court's powers are to decide cases and controversies arising before it. Nothing about the right to issue law-of-the-land statements binding parties not before it. And a pretty long track record of Congressional and Executive branch decisionmaking proceeding under the assumption that I am correct. See, e.g., Andrew Jackson's Veto Message concerning the national bank, Thomas Jefferson's defense of his pardon of those convicted under the Alien and Sedition Acts, and the debate over the admission of Hiram Revels to the postbellum Senate to name three classics.

Posted by: William Baude | Jul 10, 2006 3:58:36 PM


You say it's an "elementary misunderstanding" as if there's some authority that specifies how it is that the President and the Congress are to handle the fact that there's a Supreme Court decision saying that they can't do what they want to do. But there isn't. Indeed, it's hard to see what that authority would be, other than the text of the Constitution itself, which is utterly silent on the matter. And the Court itself seems to fall prey to this "elementary misunderstanding" on a disturbingly regular basis, as in Cooper.

Incidentally, are you familiar with U.S. v. Mendoza, 464 U.S. 154 (1984)? The Court at least addressed offensive nonmutual collateral estoppel against the gov't there. ("No.") Even there, however, the Court took pains to note that "the Executive Branch must of course defer to the Judicial Branch for final resolution of questions of constitutional law."

Regardless, can you talk a little more about the basis for this claim of yours? All I've seen so far is "Lincoln said so." Which, admittedly, is no less ultimately authoritative than my "the per curiam Court said so." But at least mine has Marbury v. Madison behind it (emphatically the province and duty, and all that rot), whereas yours has only the word of a President who liked nothing better than to chop down every law in England to catch the devil.

Pending that, a couple disconnected thoughts.

- It occurs to me that the sensible way to resolve this controversy might be to just relax the advisory opinion rule. Then, the president wouldn't have to flout a ruling to ask the Supreme Court to reconsider it.

- Is this a distinction without a difference? What's the difference between "the Supreme Court's rulings bind me" and "the Supreme Court's rulings don't bind me, but the lower courts are obliged to act [and mete out punishment] as if they did?" If you hand over military secrets to Osama bin Laden, and the Supreme Court rules that this falls within the constitutional definition of treason, I won't be heard, on my subsequent trial for the same act, to claim that the Supreme Court decision didn't apply to me. Not even under your theory will that be an admissible argument in the lower court.

So the only times when this distinction becomes relevant, it seems to me, are in the qualified immunity context already identified (where your theory breaks current law) and when the other branches do something scary like statutorily divest the courts of jurisdiction over certain acts.

Posted by: Paul Gowder | Jul 10, 2006 3:44:00 PM

There might be an argument that the duty to take care that the laws be faithfully executed, as well as the purposes given in the preamble, create an obligation on the President not to waste his time and harass people by prosecuting them for symbolic value -- as opposed to prosecuting other people on other laws that the courts will actually uphold. (And prosecuting people who might waive their arguments due to ignorance or poverty raises other issues.)

But if the President could never bring an enforcement action unless the law has been upheld by the courts, how would incorrect judgments ever be reversed?

Posted by: Anon | Jul 10, 2006 3:24:23 PM

PK and Paul,

You're both right about qualified immunity jurisprudence, of course. And for that matter, Cooper v. Aaron. It is true that the Supreme Court sometimes claims that other branches are required to follow Supreme Court precedents as if they were mere inferior courts. My claim is that the Supreme Court's claim is 1, relatively novel (in the last half-century or so), 2, quite consistently ignored by the other branches, 3, intuitively wrong, and 4, in fact wrong.

After Hamdi v. Rumsfeld had been decided, imagine a democratic president had been elected who believed that Scalia and Stevens were right and that the court was wrong, and in particular believed it was unconstitutional for the government to detain American citizens without suspending the writ of habeas corpus or charging them with a crime. Presumably few people think that the President should be prevented from implementing that view of the Constitution.

Or imagine that immediately after Brown v. Board is decided, some people challenge the application of Plessy v. Ferguson to public transportation, which Brown didn't reach. (This application wasn't overturned until Gaylve v. Browder). Surely the executive branch is permitted to conclude that the equal protection principles in the 14th Amendment require states to desegregate their public transportation. (On the other hand, inferior courts are forbidden to reach such a conclusion nowadays, because the Supreme Court reserves to itself the right to overrule its own precedents, even when intervening decisions have made them obviously doomed.)

So, yes, I think that if the Supreme Court reaches an incorrect view of the scope of the First Amendment (R.A.V. was correct, in my view), the President is authorized to bring charges against those people who it believes has violated the law. Obviously those people can then go before a judge, and presumably will release them on Constitutional grounds, but that's the system of checks and balances at work.

Judgments bind the parties. But the point is that where Supreme Court precedents are concerned it is an elementary misunderstanding of our constitutional structure to treat Congress or the President as if they stood in the same place as an inferior court.

Posted by: William Baude | Jul 10, 2006 2:48:42 PM

What's the authority, Will, for your claim that "most people" (a category expanded in the next paragraph to include the executive) are not bound to follow Supreme Court precedent in their interpretation of the Constitution?

Are you really suggesting that, say, the president has the "power" (for some sense of the word "power" that means something more than "supervisory authority over the relevant officials") to decide that he's not bound by the interpretation of the First Amendment appearing in R.A.V. v. St. Paul and order me arrested for being a registered Democrat, on the gamble that the Court will change its mind? Or that the governor of Michigan is free to order the schools segregated on the hope that when it comes back around to the judiciary, the Supreme Court will change its mind?

If that's the case, then what prevents the executive from trying every single case -- particularly in areas where money damages are unavailable or difficult to get thanks to incomplete waviers of sovereign immunity? "Oh, the Supreme Court invalidated strip searches in the public streets on suspicion alone this week, how do we know what it'll think next week?"

Note also that your "stare decisis only applies to the lower courts" view of the Constitution makes at least one important legal doctrine -- qualified immunity, and particularly the requirement that the law be "clearly established" before a government employee is individually liable for its violation under 42 U.S.C. 1983 -- totally incoherent. What difference should it make if a court ruling made the law on an issue "clearly established," if such a clearly established ruling is non-binding?

Posted by: Paul Gowder | Jul 10, 2006 12:28:46 PM

"But executive branch officials are not required to implement Supreme Court precedents in conflicts between future parties."

How true is this statement in practice? What if an executive official ignores a clear Supreme Court precedent and is then sued in a Bivens action?

Posted by: PK | Jul 10, 2006 12:23:58 PM


Two things. First, of course, is that the identity of the interpreter is everything. Giving James Madison the authoritative interpretation is as different from giving it to John Roberts as it from giving to Will Baude or Akhil Amar. Each of us are legally knowledgeable (some more knowledgeable than others), and have views about what the Constitution's words mean. Originalists have a particular argument (based on the nature of law-making, the democratic process, etc.) about why the interpretation of the framers is valuable information. There may be arguments for giving John Roberts or George Bush the final say instead, but obviously they would be different.

Second, you misunderstand the sophisticated forms of originalism. Few people think that the interpretations of the framers as to particular cases and controversies should conclusively bind the modern treatment of any arguably analogous case or controversy. The idea is that when trying to pin down the notoriously plastic meaning of words, we should keep in mind that those words (and therefore the legal texts that they form) derive their meaning from their publicly understood usage within a particular community. Therefore, to know what those texts meant when they became law, we need to know how the words were used by those who made them law.

Posted by: William Baude | Jul 10, 2006 11:55:45 AM

Will, that is certainly Mark Tushnet's view, among others (e.g., I'm recently in print along those lines). But I think you're greatly over-estimating the strength of the argument when you say (in your penultimate sentence) "surely not." I'm not an originalist, but consider the argument of originalists that the Constitution must be taken to mean what, say, its authors or ratifiers understood it to mean. How is that different than the claim that the Constitution must mean what a modern Supreme Court says it means? In both cases, there is an authoritative interpreter, other than the legislator, to whose views the legislator must defer.

Now, obviously the account for why the legislator must defer is different in each case. But your argument seems to be simply that the fact of an individual oath requires individual interpretation by the oath-taker, and I think that is probably wrong.

Posted by: BDG | Jul 10, 2006 10:00:45 AM

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