Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania V. Casey

Article excerpt

"It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled."

   President Andrew Jackson, rejecting McCulloch v. Maryland,
   while vetoing the renewal of the Bank of the United States
   more than 40 years after President Washington had held the
   Bank constitutional. (1)


One immediate tension that any conservative in the field of law must necessarily feel is between the demands of the text of the Constitution, as it was originally understood, and the demands of precedent. Conservative lawyers typically accept that the Constitution is higher law but disagree about whether that higher law is the enacted constitutional text or the traditions and precedents that have grown up over 215 years of governing under that text. Original-meaning textualists like Professors Gary Lawson and Michael Stokes Paulsen argue that the key to constitutional meaning is to be found in the objective public meaning of key words and clauses as they were understood in 1787 or 1868. Professor Akhil Amar makes much the same point, arguing that the Constitutional text is normatively better than the doctrine that the Court has developed to interpret it. (2)

In contrast, certain Burkean law professors like Thomas Merrill, (3) Barry Friedman, (4) and Ernie Young (5) have argued that it is a mistake to elevate the understandings of 1787 or 1868 above the understandings of all of the generations and justices that have lived under and construed the Constitution since its adoption. Some self-professed Burkeans go even further and argue not just for tradition and practice as the well-spring of constitutional law but for Supreme Court doctrine and caselaw as the only valid source of constitutional law, even when that caselaw flies in the face of tradition as it does today with respect to abortion and gay rights. This theory of so-called common law constitutionalism is most ably defended by Professor David Strauss. (6) A sophisticated variant on this theory is propounded by Professor Richard Fallon (7) and, most recently, Charles Fried has written that the Supreme Court is and ought to be controlled by its doctrine. (8)

In this essay, I lay out an argument as to why the Supreme Court ought to follow the text of the Constitution, as originally understood, rather than its own precedents, where there is clear conflict between the two. I will defend this claim with first, originalist arguments and second, with normative arguments. I conclude by applying my approach to the Supreme Court's decision in Planned Parenthood of Pennsylvania v. Casey and argue that that case's discussion of stare decisis is fatally flawed and ought itself to be overruled. In my view, the Casey discussion of precedent is at odds with both the understanding of the Framers of the Constitution and with good public policy. Far from being a "super-duper precedent," in the notorious words of Senate Judiciary Committee Chairman Arlen Specter, Casey is a case that should be swiftly overruled--even without regard to whether Roe v. Wade should also be overruled. The Casey discussion of stare decisis is just plain wrong.

I begin, in Part I below, by asking what the framing generation of our original Constitution thought about the problem of text and precedent. I will argue that the views of the framers are best illustrated in the long fight over the constitutionality of the Bank of the United States, one of our earliest national constitutional controversies. My claim is that the fight over the Bank of the United States ended not with McCulloch v. Maryland's famous endorsement of the constitutionality of the Bank, almost three decades after the Bank bill passed Congress, but with the veto by President Andrew Jackson of the effort to renew the Bank in 1832, thirteen years later. …