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12/13/2016

Randy Barnett on Abandoning the Defensive Crouch
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Abandoning Defensive Crouch Conservative Constitutionalism.  From the introduction:

Back on May 6th on Balkinization, Harvard law professor Mark Tushnet had some advice for “liberals” entitled: Abandoning Defensive Crouch Liberal Constitutionalism. It provides a useful road map to what Democrats had in store for us had Hillary Clinton been elected. But it also serves as a guide to what a conservative Court should–and should not–be doing now that this constitutional bullet has been dodged.

And from later along:

As Tushnet helpfully previewed, had Clinton been elected, thirty years of “conservative” tinkering-at-the-margin was going to be swept away and much, much more. No doctrine of stare decisis or “precedent” would have stood in the way. The left side of the Court has never conceded the precedential value of the past 30 years of “conservative” decisions. In constitutional law, the doctrine of stare decisis is a ratchet and ratchets only go one way, and that way is towards increased national power, and delegation to the Administrative-Executive State–qualified only by judicially-selected “fundamental rights” and protected “suspect classes.”

But Tushnet was right in principle. As I have long maintained (see here), the law of the Constitution should take priority over the mistaken rulings of previous justices. What Tushnet and I disagree about is what the Constitution means. He thinks it means progressive results; I think it means what it says. If New Deal, Warren and Burger court decisions were–in Tushnets words–“wrong the day they were decided,” then they should be reversed and replaced by the original meaning of the Constitution itself.