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31 posts from September 2020


Kent Barnett: How Chevron Deference Fits Into Article III
Michael Ramsey

Kent H. Barnett (University of Georgia School of Law) has posted How Chevron Deference Fits Into Article III (Geo. Wash. L. Rev.) (48 pages) on SSRN.  Here is the abstract: 

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference—under which courts defer to reasonable agency statutory interpretations—violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, “to say what the law is” or requires judges to forgo independent judgment by favoring the government’s position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This article does what these critics perhaps surprisingly do not do—situates challenges to Chevron within the broad landscape of the Court’s current Article III jurisprudence.

A thorough study of Article III jurisprudence hobbles these blunderbuss Article III challenges to Chevron but leaves room for narrow attacks. Derived from the plurality in Northern Pipeline v. Marathon Pipe Line Co., a four-quadrant matrix informs Congress’s power to limit Article III adjudication or review. The quadrants concern public and private rights, each subdivided by claims Congress created and did not create. Chevron does not apply to the most contentious and perhaps most unsettled quadrant (private rights that Congress did not create), and it mostly applies in the quadrant in which Congress almost certainly can limit de novo judicial review (public rights that Congress creates). That leaves two other quadrants—public rights that Congress did not create (including, for traditional reasons, criminal law) and congressionally created private rights—where Chevron sometimes applies. Chevron’s application in these latter two quadrants should give pause because the Court has more jealously guarded Article III adjudication there from congressional interference than with public rights that Congress created. Yet even within these two quadrants, other strands of Article III doctrine suggest that Congress has some space to limit de novo judicial review. By considering the full Article III landscape, this article demonstrates the folly of a wholesale attack on Chevron and its destabilizing effects. Its critics should instead focus their efforts on discrete skirmishes within the two quadrants where Article III has neither its highest nor lowest bastions.

Via Larry Solum at Legal Theory Blog, who comments:

Recommended.  This is yet another topic, where the interpretation-construction distinction can help to clear up a good deal of conceptual confusion. See Chevron as Construction (co-authored with Sunstein).  There is much to admire in this article, but it seems likely that originalists would welcome the destabilization of Article III doctrine that is inconsistent with the original public meaning of the constitutional text.



John McGinnis on Originalism and Constitutionalism (with a Response from Eric Segall)
Michael Ramsey

At Law & Liberty, John McGinnis: Can Modern Originalism Save American Constitutionalism?  From the introduction:

The politics of the modern West has been created by two very different revolutions—the American and the French. One of the important differences between the two is their conflicting concepts of a constitution. In his last book, Conservatism: An Invitation to the Great Tradition, the late great philosopher Sir Roger Scruton observed that the American Constitution, in its model for both structure and rights, “was designed to guarantee to the people what they had once enjoyed. It was the recipe for an already established practice rather than a recipe for a new order of things.” Scruton noted, for instance, that the rights provided in the American Constitution had been previously defined at common law. In contrast, the French Declaration of Rights was a product of philosophical reflection, an attempt “to transcribe into politics ideas that had previously no overt presence there and which owed . . . much to the abstract arguments of philosophers.”

The struggle over the interpretation of the United States Constitution is profitably understood as a debate over whether the United States should retain a constitution whose meaning was fixed by reference to established practices that animated the American Revolution or whether it should be changed into a constitution more closely resembling the French Declaration of Rights.

And in conclusion:

The fundamental conflict between the traditions of constitutionalism that Scruton describes has never been more relevant than now, when a new band of anti-liberal philosophes is threatening to dominate our intellectual life. The new ideology on campus, sometimes called the Successor Ideology, is self-consciously post-liberal. It wants to replace the market meritocracy enabled by our amended Constitution of limited government and individual rights with an anti-capitalist identity politics. This social movement is not going to stay on campus but will soon be pushing for its ideas to be impressed in constitutional law. Interpreting the Constitution as a set of abstractions, as did the French revolutionaries and their American living constitutionalist successors, opens a channel for infusing this new ideology into our venerable charter of government. In contrast, originalism correctly conceived anchors the tradition of constitutionalism and provides the most effective protection against this latest enthusiasm of the intellectual class.  

At Dorf on Law, Eric Segall responds: Originalism Without Slavery and Sexism is a Dangerous Fiction and Other Absurdities: A Response to Professor McGinnis.  In part:

[A]nyone defending the American Constitution as "a recipe for an already established practice" needs to address the evils of slavery, complete subjugation of women, and the limited franchise at the time our Constitution was ratified. As usual, however, and like most originalists, new, old, and in-between, there is no mention of those pernicious practices in McGinnis's post. More on that failing later.

After comparing the [American and French] revolutions, McGinnis says the following:

The struggle over the interpretation of the United States Constitution is profitably understood as a debate over whether the United States should retain a constitution whose meaning was fixed by reference to established practices that animated the American Revolution or whether it should be changed into a constitution more closely resembling the French Declaration of Rights.

What does it even mean to suggest that textually imprecise provisions in the Constitution such as those prohibiting the government from abridging freedom of speech, denying anyone due process of law, imposing cruel and unusual punishments, forbidding unreasonable searches and seizures, and establishments of religion have a "fixed meaning?" This is simply incoherent when it comes to real cases in front of real judges. What implications does the internet have for personal jurisdiction? Are lethal injections cruel and unusual punishments? Which modern technologies constitute unreasonable searches? And is paying union dues "speech"? These are all questions that cannot be answered by reference to the Constitution's "fixed meaning" because of course none of the relevant constitutional provisions has a fixed meaning, and the founding fathers were well aware of that fact.

And in conclusion:

I am not here to praise or damn the French Revolution and, frankly, McGinnis should also stay away from that business. I am here to say that originalists often overlook or minimize how terrible America in 1789 and 1868 was for people of color and women, and they should be careful about describing those eras of American history with such admiration. Additionally, as I have written many times before, originalism is not the tool to limit judicial discretion given the imprecise nature of the litigated Constitution. The only tool that can meaningfully constrain judges is strong deference to other political actors--a tool modern originalists (as oxymoronic as that is) fail to wield as often as non-originalists. McGinnis's descriptions of the divides between so-called originalists and so-called living constitutionalists are as unpersuasive as his over-romanticizing of our founding period is deeply troubling.


Larry Solum on Living Constitutionalism
Michael Ramsey

At Legal Theory Blog, Larry  Solum has an updated entry in his Legal Theory Lexicon: Living Constitutionalism.  From the introduction:

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism."  But what about originalism's great historic rival, "living constitutionalism?"  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism.

On "Living Constitutionalism versus Originalism":

Like other theoretical terms, "living constitutionalism" and "originalism" have meanings that are disputed.  This means that some theorists are likely to offer definitions for these terms that make it true (as a matter of definition) that living constitutionalism and originalism are mutually exclusive, where as other theorists may embrace the possibility that some moderate forms of living constitutionalism are compatible with originalism.  The most prominent example of compatibilism is Jack Balkin's theory, which he explicated and defended in his book, Living Originalism.


..."[L]iving originalism" is a conceptual possibility if it is the case that the fixed original meaning of the constitutional text underdetermines at least some questions of constitutional doctrine.  Such underdetermination may occur if the constitution contains provisions that are vague or open textured.  Such provisions could be said to create "construction zones," areas of doctrine where the linguistic meaning of the text would need to be supplemented by precisification or default rules.  Thus, if some living constitutionalists accept that the constitutional text is binding when it is clear, then they could embrace originalism as to some issues while affirming that constitutional doctrine should evolve with respect to others.

Many participants in debates about living constitutionalism and originalism seem to reject the idea of compatibilism.  One reason for such rejection may a dispute over the definitions of the terms "living constitutionalism" and "originalism" could be defined as mutually exclusive positions.  This way of carving up the conceptual space has the advantage that it puts the two views in opposition to each other.  To the extent that the definitions are contested, the result would be "metalinguistic negotiation," which is discussed in another Legal Theory Lexicon entry.

And, most helpfully:

Given the highly abstract definition of "living constitutionalism," is should not be surprising that there are many different versions.  Living constitutionalism is best viewed as a family of theories.  A full survey of the members of the family is too much for a Lexicon entry, but here are some of the most important members ...


Ilan Wurman on Originalism and Precedent
Michael Ramsey

At Law & Liberty Forum, Ilan Wurman (Arizona State): Stare Decisis in an Originalist Theory of Law (responding to this essay by Marc DeGirolami).  From the introduction: 

There is much to admire in Marc DeGirolami’s excellent and thought-provoking essay on bridging the gap between originalism and stare decisis. I’m not sure I disagree with his analysis. But, I think, that analysis would benefit from three refinements or clarifications, with which we can better understand why the Founding generation expected judges to be both originalist and bound by precedent.

First, we ought to be clear that there are at least two different kinds of precedent. There are those precedents that resolve a question within the range of permissible textual interpretations. That was the kind of precedent to which Justice Clarence Thomas was referring in his opinion in Gamble; to which Alexander Hamilton was likely referring in his discussion in Federalist 78; and which originalists argue is consistent with Article III of the Constitution. One can be an originalist but also accept that the original meaning is sometimes open to competing plausible interpretations. What is a judge—or legislator, or executive—to do? When the question is first decided, it will not be decided on the basis of “precedent,” but rather on what these first deciders think is the best answer. Subsequent decisionmakers can then rely on that initial decision or disagree with it. At some point in time, however, future decisionmakers will consider the answer to the question “liquidated” or “settled” if enough earlier decisionmakers landed on a similar answer. This seems to have been James Madison’s view when he refused to veto the Second Bank of the United States, even though he had initially opposed the first bank on constitutional grounds.

This version of precedent explains why the Founders could be originalist while also accepting precedent. ...

So whence comes the need to bridge the gap between originalism and stare decisis in modern-day cases? The question arises only because at some point in time, the Supreme Court abandoned originalism, and prior originalist precedents, and came up with new law altogether. When precisely this happened is beside the point; it surely happened at different times for different doctrines. The point is, once the Supreme Court decided to change the law, the Supreme Court began to reaffirm its changes. These new legal decisions were now “precedents,” but they were unlike the older precedents in that they were outside the bounds of permissible textual interpretation.

Is this kind of new “precedent” the kind worth adhering to?

And in conclusion:

To summarize, any theory of precedent must recognize, as does Professor DeGirolami’s, that stare decisis is valuable “because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome.” But this requires a chain of decisions over time, and not a single Supreme Court decision; recognition that ultimately these decisions over time matter only because the numerous individuals at different times and places that have agreed are more likely to have agreed on the correct answer; and that the correct answer must be within the range of possible original meanings. Only by understanding these points can we see how it was possible for the Founders themselves to think that judges would be both originalist and bound by precedent.


Yasmin Dawood: Election Law Originalism
Michael Ramsey

Yasmin Dawood (University of Toronto - Faculty of Law) has posted Election Law Originalism: The Supreme Court's Elitist Theory of Democracy (64 St. Louis University Law Journal 609-633 (2020)) (27 pages) on SSRN.  Here is the abstract:

The standard topics of election law — such as campaign finance, electoral redistricting, and voter qualification laws — are facing a deeply uncertain future in large part due to the U.S. Supreme Court’s recent decisions. To consider the larger conceptual issues at stake in these decisions, this Essay addresses two inter-related questions. First: How should we conceptualize the role of the Supreme Court as an institution in these decisions? Second: What is the underlying conception of democracy that best elucidates the Court’s major election law decisions in the last decade or so?

This Essay argues that the Supreme Court’s role in recent election law decisions cannot be easily reduced to a single or consistent approach. Instead, I claim that the Court majority’s opinions, when viewed from an external perspective, display a particular vision of democracy that is fundamentally elitist in its outlook. This elitist vision of democracy stands in marked contrast to the egalitarian vision of democracy that is evident in the dissenting opinions of the four liberal justices. I suggest further that this elitist conception of democracy is a familiar one — it has certain continuities (and discontinuities) with theories of republicanism that existed at the time of the Founding.

Given the echo of founding era themes, this Essay considers the role of originalism in current election law decisions. It concludes that neither the Court’s decisions, nor the emerging elitist conception of democracy, fall within originalism strictly understood. That being said, the Essay suggests that some of the Court majority’s arguments display an “originalist orientation” in which original meaning takes a preponderant weight in the analysis even if it does not compel the overall outcome. In practical terms, this originalist orientation has significant implications for future election law cases because it means that, at least for some issues, the founding era is serving as an implicit baseline for the conservative wing of the Court. The Essay identifies three ways in which the Court majority’s originalist orientation matters: first, non-originalist precedents would likely carry less precedential weight; second, election law federalism would likely be interpreted in a manner hostile to egalitarian ideals; and third, electoral reform efforts could be thwarted. In future cases, this originalist orientation will likely reinforce the elitist conception of democracy and further erode the egalitarian approach to democracy.

Without necessarily endorsing the paper's substantive conclusions, I very much endorse its idea of "originalist orientation" (contrasted with "originalism strictly understood") as a description of the thinking of some of the key Justices.


Laurence Claus: Separation, Enumeration, and the Implied Bill of Rights
Michael Ramsey

Laurence Claus (University of San Diego School of Law) has posted Separation, Enumeration, and the Implied Bill of Rights (Journal of Law and Politics, forthcoming) (35 pages) on SSRN.  Here is the abstract:

The United States Constitution sets forth two strategies for distributing power within the system of government that it establishes. To distribute power horizontally within the national government, the Constitution seeks to separate power by kind – legislative, executive, and judicial. To distribute power vertically between the national and state governments, the Constitution seeks to enumerate power by subject.

Neither strategy works. Separation by kind fails because governing actions are not of single kinds. Governing in all three branches necessarily involves both lawmaking and law executing. Enumeration by subject fails because governing actions are not about single subjects. Governing actions can readily be characterized in more than one way, as about more than one subject. Consequently, those who must decide disputes about the distribution of power are obliged to create a law of institutional competence and a law of constitutional characterization with far less guidance from the Constitution than it purports to give them.

How did these two unachievable strategies come to be adopted? What should guide courts in creating a law of institutional competence and a law of constitutional characterization to settle the actual horizontal and vertical distribution of power? Examining these questions illuminates a clearer path for courts to expound the Constitution’s meaning in ways that expand its protections. Deciding the distribution of power lets courts create an implied bill of rights.


Caniglia v. Strom: Possible Case of Originalist Interest for the Next Supreme Court Term
Michael Ramsey

Via SCOTUSblog, a petition file recently in Caniglia v. Strom asks "Whether the 'community caretaking' exception to the Fourth Amendment’s warrant requirement extends to the home."  Originalist answer: I bet it doesn't, and indeed I bet the entire 'community caretaking' exception is something the Court made up in its more freewheeling days.  As SCOTUSblog summarizes:

[O]fficers questioned Edward Caniglia at his home after his wife expressed concern that he might be suicidal. They took him to a hospital and then entered the home and removed two handguns. The officers’ justification for the entry and seizures was the “community caretaking” exception to the Fourth Amendment’s warrant requirement. The Supreme Court’s first case recognizing that exception, Cady v. Dombrowski, involved officers searching the trunk of a car towed after an accident. Since then the federal courts of appeals have divided on whether the exception applies to the home or only to motor vehicles. Caniglia filed a cert petition, asking the Supreme Court to resolve this split and hold that the exception cannot justify warrantless intrusions inside a home.

From the petition

In Cady v. Dombrowski, 413 U.S. 433 (1973), this Court held that police officers did not violate the Fourth Amendment when they searched the trunk of a car that had been towed after an accident. The Court acknowledged that, “except in certain carefully defined classes of cases,” police cannot search private property without consent or a warrant. Id. at 439. It emphasized, however, that “there is a constitutional difference between houses and cars.” Id. (quoting Chambers v. Maroney, 399 U.S. 42, 52 (1970)). “[P]olice officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441. The Court thus held that a “caretaking ‘search’ conducted . . . of a vehicle that was neither in the custody nor on the premises of its owner . . . was not unreasonable solely because a warrant had not been obtained.” Id. at 447–48.

Cady drew on a line of cases “treating automobiles differently from houses” for purposes of the Fourth Amendment. Id. at 441; see also id. at 439–47 (discussing other automobile cases). And the Court limited Cady’s rule to vehicle searches. ...

In the decades since Cady, however, the so-called “community caretaking” exception has taken on a life of its own. Courts across the country are deeply divided about whether the “community caretaking” exception can justify a warrantless intrusion into a home. There is at least a four-to-three split on that question among the federal Courts of Appeals. State courts are similarly divided. Courts have acknowledged the split repeatedly, as did the Defendants in their briefing below. ...

(Petition filed on behalf of Mr. Caniglia by former Scalia clerk Shay Dvoretzky.)

The courts have a sorry history of (a) saying the Fourth Amendment doesn't apply as strictly to cars because, well, cars are different somehow (never mind that there were personal vehicles at the time of enactment, albeit without engines, and cars are obviously "effects" protected by the Amendment), and then (b) letting whatever exception is made up for cars extend to other situations in ways that obviously wouldn't have been accepted in the founding era.  Fortunately the Supreme Court has been cutting back on this practice, and Caniglia may be an opportunity to make some more progress in that direction.


John McGinnis on the Unitary Executive
Michael Ramsey

At Law & Liberty, John O. McGinnis: The Pragmatic Case for a Unitary Executive.  From the introduction:

The theory of the unitary executive is gaining traction in American law. That view of the Constitution asserts that the president controls whatever power is given to the executive branch of the federal government. As a result, the president must be able to dismiss his subordinate executives at will. Otherwise, these officials will be responsive to others or to themselves, not to the chief executive.

The unitary executive is persistently, sometimes willfully, confused with the notion that the president enjoys large residual constitutional powers. But the scope of presidential powers is distinct from the control over whatever those powers are. As Justice Samuel Alito said at his confirmation hearing, the first question “is the scope of Executive power: [W]e might think of that as how big is this table, the extent of the Executive powers.” That was distinct from a different question, “[W]hen you have a power that is within the prerogative of the Executive, who controls [it]?” The unitary executive is concerned only with the second question.

A majority of the Supreme Court justices now accept the essence of the originalist case for the unitary executive. This term in Seila Law v. Consumer Financial Protection Bureau, the Court held that insulating the director of the CFPB from presidential removal was unconstitutional because it offended the separation of powers, saying bluntly, “The President’s Executive Power generally includes the power to supervise—and if necessary remove—those who exercise the President’s power on his behalf.” While the Court did not overrule previous cases that had upheld statutory insulations of executive officials from presidential removal, it narrowly confined their ambit, raising questions about whether they might be overruled in the future.

The originalist case for the unitary executive was powerfully made in Seila and in the academic work of my colleague, Steven Calabresi. But there is also a more pragmatic case for the unitary executive that should help persuade the non-originalist justices who were in dissent in Seila. First, in the modern world, almost all matters in which the federal government is involved have foreign policy implications. For instance, the greatest threat to the United States is the continuing rise of Communist China. To counter this threat, the United States must muster all its military, economic, and technological might. Such a total commitment involves the work of essentially all agencies of government. And it is the president who must be responsible for the executive’s foreign policy decisions because he alone has a broader perspective and intelligence tools available to protect the nation and navigate international relationships.


New Book from Jack Balkin: "The Cycles of Constitutional Time"
Michael Ramsey

Recently published, by Jack Balkin: The Cycles of Constitutional Time (Oxford Univ. Press 2020).  Here is the book description from Amazon:

What will happen to American democracy? The nation's past holds vital clues for understanding where we are now and where we are headed. In The Cycles of Constitutional Time, the eminent constitutional theorist Jack Balkin explains how America's constitutional system changes through the interplay among three cycles: the rise and fall of dominant political parties, the waxing and waning of political polarization, and alternating episodes of constitutional decay and constitutional renewal. If America's politics seems especially fraught today, it is because we are nearing the end of the Republican Party's political dominance, at the height of a long cycle of political polarization, and suffering from an advanced case of what he calls "constitutional rot." In fact, when people talk about constitutional crisis, Balkin explains, they are usually describing constitutional rot--the historical process through which republics become less representative and less devoted to the common good. Brought on by increasing economic inequality and loss of trust, constitutional rot threatens our constitutional system.

But Balkin offers a message of hope: We have been through these cycles before, and we will get through them again. He describes what our politics will look like as polarization lessens and constitutional rot recedes. Balkin also explains how the cycles of constitutional time shape the work of the federal courts and theories about constitutional interpretation. He shows how the political parties have switched sides on judicial review not once but twice in the twentieth century, and what struggles over judicial review will look like in the coming decades. Drawing on literatures from history, law, and political science, this is a fascinating ride through American history with important lessons for the present and the future.

(Via Balkinization, where Professor Balkin has a more detailed chapter-by-chapter description of the book.)


Marc DeGirolami on Originalism and Precedent
Michael Ramsey

At the Law & Liberty Forum, Marc DeGirolami: Integrating Originalism and Stare Decisis.  From the introduction: 

This essay ... diagnoses the problem stare decisis poses for originalism and surveys recent doctrine and scholarship on the subject. It concludes that if they wish to integrate originalism and stare decisis, originalists will have to confront the value of legal stability promoted by stare decisis more squarely. They will need to appreciate and incorporate the virtue of legal endurance—and constitutional law’s abiding traditionalism—into a theory of originalist judging.


What I will claim is the gap within originalism depends on what Professor Gary Lawson once called the distinction between interpretation (what words mean) and adjudication (how judges should decide cases). As a theory of interpretation, originalism is the view that the text of the Constitution means what it meant to the relevant public adopting it. As a theory of adjudication, originalism holds that judges should therefore decide cases by applying the text in accordance with the original public meaning.

But there is no necessary connection between these theories. I can know what the words on a shopping list mean and have good reasons to buy all, some, or none of the groceries on it. Likewise, a judge can know the original public meaning of the constitutional text and have good reasons to decide a case in full, partial, or no accord with that meaning. True, there are also descriptive and normative theories of originalism’s legal authority and political legitimacy. But these, too, do not speak directly to how judges should decide cases, or to the nature of judicial excellence in constitutional adjudication. Just as one can have a theory of the meaning of shopping lists, one can also have a theory of the authoritative shopping-list maker, or of the list’s legitimacy, and yet still decide, for excellent reasons, to depart from the list when actually shopping. Some further argument is needed for judges to decide cases in accord with original meaning—some connection between a theory of constitutional meaning and a theory of constitutional judging.

And in conclusion (with lots of insightful analysis in between):

[S]tare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.

Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.