Academic journal article
By Alicea, Joel
Harvard Journal of Law & Public Policy , Vol. 35, No. 2
The 2012 election has highlighted contrasting theories of American constitutionalism. Several of the Republican presidential candidates made issues of constitutional interpretation central to their campaigns, from the appropriate respect the Tenth Amendment ought to command to the constitutionality of President Barack Obama's healthcare reform law. (1) Although one might expect that every Republican presidential candidate would promise to repeal the healthcare law, (2) it is noteworthy that none has said the law's constitutionality depends on the Supreme Court's judgment. The implication is that the statute must be repealed as unconstitutional irrespective of how the Supreme Court rules. (3) An implied consensus emerged among the Republican presidential candidates that the political branches have an independent duty to evaluate the constitutionality of legislation. (4) Former House Speaker Newt Gingrich went even further and explicitly called for a rejection of judicial supremacy. (5)
This is a remarkable development. Political scientists and legal commentators have long discussed the phenomenon that Mark Tushnet has labeled the "judicial overhang": the notion that "[l]egislators may define their jobs as excluding consideration of the Constitution precisely because the courts are there." (6) It is a notion deeply rooted in judicial supremacy over constitutional interpretation. After all, the thinking goes, if the Supreme Court is the ultimate authority on constitutional meaning, why should the political branches bother to take their jobs as constitutional interpreters seriously? (7) Examples of this attitude abound. During the debate over the healthcare bill, then-House Speaker Nancy Pelosi reacted to a reporter's question concerning the bill's constitutionality by asking the reporter, "Are you serious?" (8) Speaker Pelosi's reaction was not entirely surprising given that only a few years earlier she described a decision of the Supreme Court as binding to the point that the decision was "almost as if God ha[d] spoken." (9)
But how are political actors to evaluate the constitutionality of legislation? The rhetoric of the Republican presidential candidates repeatedly harkens back to the views of the Founders, (10) implying a crude form of originalism. Indeed, former Speaker Gingrich stated he would adhere to originalism when making constitutional judgments as President. (11) The idea of originalist interpretation by the political branches was given an emphatic and articulate voice by then-Senator-elect Mike Lee in his 2010 speech to the Federalist Society National Lawyers Convention. Lee offered the following pledge: "I will not vote for a single piece of legislation that I can't reconcile with the text and the original understanding of the U.S. Constitution." (12)
Senator Lee's pledge, set against the backdrop of the move toward extrajudicial constitutional interpretation, leads to an important question. If Congress did abide by originalism when evaluating legislation, how would it treat legislative precedents? Would Congress feel unrestrained by the constitutional judgments of past legislators, or would a form of stare decisis develop within Congress? (13) The answer depends in part on whether Congress would adopt a theory of originalism that accepts the legitimacy of precedent. (14) As a practical matter, however, no originalist legislator could demand a wholesale return to original meaning; it is implausible that Congress would restrict its own powers in such a radical way and endanger politically popular statutory law. Assuming, then, that an originalist Congress was one that accepted the legitimacy of constitutional precedent, would it have any obligations to follow the precedents laid down by past Congresses?
The answer to this question is the project of this Note. It is important to stress, however, the limited nature of the inquiry. The concern here is with the normative status of legislative precedents for an originalist Congress: Should an originalist legislator give any weight to previous legislative constitutional judgments? …