NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we examine the tension between originalism and precedent. Today’s episode features Professor Randy E. Barnett, who is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center, where he directs the Georgetown Center for the Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: A common objection about Originalism is that doesn’t accommodate precedent. How do you address that? Is there a legitimate role for precedent in Originalism? RANDY BARNETT: The concept of precedent or stare decisis is in tension with the idea of originalism. If judges are supposed to be following the original meaning of the text of the Constitution, what happens when previous judicial opinions, or decisions, were inconsistent with the text of the original Constitution? A reliance on stare decisis, or precedent, would seem to dictate the judges should follow the opinions of long dead justices over the text of the Constitution that's been given to us by the founders and by those who amended it. The appearance is a little exaggerated because, well, in my view, judges really ought to follow the text of the Constitution and not precedents that are inconsistent with that text. But this is not as radical as it sounds. For one thing, most precedents involve, not Constitutional interpretation but Constitutional construction. By which is meant the development of doctrine that applies the original meaning of the text to particular cases and controversies. Following precedents that establish Constitutional doctrines that have themselves been chosen as a way of implementing the text of the Constitution is not in conflict with the original meaning of the text of the Constitution. Secondly it matters a great deal whether a particular precedent purports to be about the original meaning of the text of the Constitution. How much deference a current court should pay a previous decision by that court is going to be influenced by whether the previous court was actually attempting to find the original meaning of the Constitution. If the previous court was attempting to follow the original meaning of the Constitution it might make sense to defer that judgment unless a current judge, or justice, is quite convinced that that previous judgment was wrong. But if a previous decision of the court was not based on the original meaning of the text, and in fact rejected the original meaning of the text of the Constitution, though very few Supreme Court opinions expressly do that, then it's not clear why a justice today, who takes an oath to the Constitution and not an oath to previous Supreme Court opinions, should defer to those opinions when those opinions are in conflict with the text of the Constitution. PUBLIUS: What about non-Originalist precedent? Should that be ignored? RANDY BARNETT: A commitment to originalism does not mean opening up every decision that has previously been made by the court as to whether a particular program is or is not Constitutional. Those decisions have been made. What a commitment to originalism entails is not extending the rationale for those previous decisions indefinitely, into the future, to apply to new cases, and new programs. Justified because the previous programs were erroneously justified. The question about whether justices should follow precedent, or the original meaning of the Constitution, is asked in a vacuum. In the real world, we have a nine justice Supreme Court, and in fact the Supreme Court will not be undercutting a previous decision unless a majority of the Supreme Court Justices' find that that previous decision was inconsistent with original meaning. That will require a majority of the Supreme Court to be originalists. And we don't have a majority of the Court today, who are committed originalists. So how does an originalist justice treat precedent when it goes against the original meaning? Take the Rehnquist Courts opinion of Lopez and Morrison. The Rehnquist Court generally adopted a posture of, this far and no farther. That is, rather than overturn new deal precedents, it looked at those new deal precedents as the high water mark of approved governmental power, and said it would not go above that high water mark, unless there was a judicially administrable limiting principal so that we did not get all the way to a national government of general powers. This is an example of how originalism can exert a gravitational force on how precedents are treated. Though they are not reversed, they are simply not extended any farther than is necessary to be extended. Because justices are well aware that doing so would go even farther away from the original meaning of the text than they currently have. PUBLIUS: Are there “rules” of precedent? If so, how do you figure those out? RANDY BARNETT: The doctrine of stare decisis is a Constitutional construction. Anybody who doesn't like Constitutional constructions would not like the doctrine of stare decisis. It's a judicially made doctrine, that is not in the text of the Constitution itself. The question is, is it faithful to the text of the Constitution or not? Well, stare decisis is essential in a common law system in which rules of law are developed as a result of judge made decisions. So you would extrapolate, on the basis of a series of decisions, what is the rule of contract law? For example does a promise require consideration in order to be enforced? The rule evolves from the decision of disparate judges each of whom follow the precedent set by other judges. That's a common law system. But the Constitution superimposes upon a common law system a written text. And a written text is meant to supersede that of a common law judge decided system. Where a common law system continues to exist is in the development of Constitutional doctrines to implement the original meaning of the text of the Constitution. What I'm calling Constitutional construction. There, because you do have a common law system, you also have a doctrine of stare decisis as well. In which judges will tend to follow the previous decisions unless they're shown to be manifestly false. But here's one thing to keep in mind when you think about stare decisis, it's very true that lower courts try very hard to stay within the original meaning of the Supreme Courts precedent. But the Supreme Court Justices' themselves only follow precedents that they are committed to. They only follow precedents that they think are basically sound. And they are more than prepared to reverse precedents that they themselves think are Constitutionally unsound. The question for a Supreme Court Justice is always which precedents do they wanna follow? And why do they wanna follow them? Not whether they will always follow every precedent. In contrast to lower courts, no justice has ever claimed that they have a duty to follow every Supreme Court decision in the past. Every justice has a list of precedents that they think are sacrosanct and should have to be followed. And also a list of previous decisions they think should not be followed. So the big question, for any justice, is what is the criteria by which they distinguish between following a previous decision, and not following it? For an originalist justice, that criteria must include whether that previous precedent purported to be a good faith interpretation of the original meaning of the text or did not. It's never a situation where you simply push a button and everything changes. The only way originalism comes to be the dominant view of interpretation is if enough presidents nominate enough justices who are confirmed by enough senates for there to be a majority of originalist justices, and that process takes a very long time and it assumes political developments have taken place that would make originalist outcomes much less radical than they seem at the beginning. PUBLIUS: Can you say a bit more about the role that Originalism plays here? Especially concerning court decisions? RANDY BARNETT: Originalism fits into this project because it is the original meaning of the text of our constitution that provides for 50 state solutions to the most contentious social problems, and following the original meaning of our constitution will yield that kind of social peace, whereas adhering to the living constitutionalism of the post New Deal era, where all major and socioeconomic problems are decided by Congress on a one-size-fits-all basis, and not even by Congress, but by administrative agencies because Congress doesn't have enough time and resources to decide all questions. Now we're being ruled by administrative agencies on a one-size-fits-all basis, that these administrative agencies are not accountable to the American people. That is a situation where is a recipe for a political war of all against all, and a great deal of social strife. What about the supposedly more open ended provisions of the constitution, like, for example, the ninth amendment that says the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people? Or what about the privileges or immunities clause that says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States? Does acknowledging the original meaning of these clauses give judges a carte blanche to do whatever they want, to impose whatever rights they deem to be fundamental on the people as a whole, and restrict the rights of legislatures or the power of legislatures to legislate accordingly? I don't think so. The original meaning of the rights retained by the people does refer to the natural rights that people have before government is founded and retained after government is founded. I think the evidence for that is clear. But that doesn't mean that judges should be deciding what are the natural rights of people, and then imposing that view on the legislature. That is really more the post New Deal vision of fundamental rights decided by judges and imposed on legislators. What the constitutional recognition of the rights retained by the people entails is that the powers that are exercised by legislatures are inherently limited to the protection of the rights and liberties of we, the people. In the words of the Declaration, "to secure these rights, governments are instituted among men." So this leads to a judicial inquiry as to whether government is passing a law in good faith to protect the rights and liberties of the people. If such a law is passed in good faith to protect, for example, the health and safety of the people, then it's constitutional without having to speculate about what the basic rights of man are, and what natural rights are and are not. What matters is is government exercising a power that they're competent to exercise? And, in particular, is their power related to protecting the rights of we, the people. If legislatures are in good faith attempting to protect, for example, the health and safety of the people, then those measures are constitutional. Rights on this view are not trumps that overcome all legislative power to enact social and economic policy. Rights are simply in existence to put the burden on the government to justify what it's doing as good faith implementation of public policy that's meant to protect the rights of the people. The only burden imposed on government by the original meaning of the ninth amendment and the privileges or immunities clause is that legislatures actually be acting within the powers that they are delegated by the people to secure the rights and liberties of we, the people. Each and every one of us. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about Originalism. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!