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Nelson Lund: Stare Decisis and Originalism
Mike Rappaport

Nelson Lund (George Mason University School of Law) has posted Stare Decisis and Originalism: Judicial Disengagement from the Supreme Court's Errors (George Mason Law Review, forthcoming) on SSRN. Here is the abstract:

Originalism has had an uneasy relationship with stare decisis, but the two seem wedded in a way that precludes divorce and thus encourages adultery. Almost all originalists have decided, on pragmatic grounds, that the Supreme Court’s constitutional infidelities must sometimes be allowed to mature into de facto constitutional amendments. Writing in the Michigan Law Review, Jonathan Mitchell has proposed a new theory — based solely on the text of the Supremacy Clause rather than on pragmatic considerations — that purports to identify which interpretive infidelities must be rejected and which may be allowed to continue indefinitely.

According to this theory, it is unconstitutional for the Supreme Court to rely on stare decisis when, and only when, its precedents (a form of nonsupreme law) conflict with one of the three forms of supreme law identified in the Supremacy Clause. Accordingly, erroneous constitutional precedents may never be relied on to strike down a federal statute or to uphold a state law that conflicts with the supreme law of the land. Conversely, erroneous constitutional precedents may be relied on to uphold a federal statute or to strike down a state law.

Mitchell’s argument overstates the implications of the use of the word “supreme” in the Supremacy Clause, and it overlooks the principal purpose of the Clause. The better reading is that the Clause was meant to establish both the supremacy of federal law over state law and the obligation of state courts to respect that principle. The Supremacy Clause is simply silent about the Supreme Court’s duty when its precedents conflict with the original meaning of the Constitution.

Mitchell is right, however, to emphasize that the Supremacy Clause implicitly rejects the notion that Supreme Court opinions can be the supreme law of the land. Because the Clause is directed primarily at commanding state courts to follow the supreme law when it conflicts with a nonsupreme law, a reasonable inference is that state courts are not bound by erroneous Supreme Court opinions. If state supreme courts were to take that inference seriously, we might see a healthy intellectual competition between them and their federal counterpart. If all these contestants were to begin taking the Constitution more seriously than they do now, the nation could be the ultimate winner.

Update: I hope to have a post or two about Mitchell's article in the near future.   I should note that Lund has a discussion of the Supremacy Clause's effect on the constitutionality of precedent which is very similar to my own (which he cites).  Here is the main argument: 

The Clause is silent about the authority of judicial precedents. The principle and practice of stare decisis were at least as well established as the previous supremacy of state constitutions and statutes within their several jurisdictions. Yet no statement about a new limitation on stare decisis appears in the Supremacy Clause. Its manifest purpose is to clarify the dramatic new relation between state and federal law, and especially to make that relation unmistakably clear to state judges, who might naturally have been resistant to recognizing it.  Mitchell’s claim that the mere use of the word “supreme” in the course of this clarification also implies that the Supreme Court must adopt a novel and complex doctrine of stare decisis is imaginative, but not very plausible.

In addition, the sharp distinction that Mitchell draws between supreme law and nonsupreme law would also seem to imply that erroneous interpretations of federal statutes may never be adhered to. This would constitute a radical change from the judicial practice familiar to the framing generation, and it is almost impossible to believe that such an alteration would have been imposed by mere implication from the use of the word “supreme” in the Supremacy Clause.