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Monday, October 10, 2022

Constitutional Creationism

I will be on sabbatical next year and hope to write up some new projects. One is what I like to call "constitutional creationism." This is a phenomenon whereby courts and scholars claim that a principle or a doctrine was settled from the moment of ratification or initial application when the idea, in fact, evolved over time.

Take a simple example: "The Decision of 1789." The First Congress, the story goes, established the precedent that the President could fire Cabinet officials at will. But this question was not settled by the Decision of 1789. Congress's right to limit the President's discretion in this regard was widely discussed during the debate on the Censure Resolution of Andrew Jackson and the impeachment trial of Andrew Johnson. "The Decision of 1868" might be a better way of describing the principle.

Here's another example. In overruling precedent, courts sometimes say that the prior decision was wrong ab initio. Why say that instead of "times have changed?" A decision could be wrong from the moment of decision, but I'm not sure that's an accurate description of all of the cases that are so characterized.

Legitimacy and stability is an underlying concern for these sorts of interpretive moves. But I'll say more about that in another post. 

Posted by Gerard Magliocca on October 10, 2022 at 11:18 AM | Permalink


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