November 17, 2005
Precedent and the Constitution
By Ronald A. Cass

Many issues that affect our lives and shape our nation turn on judges' decisions on constitutional questions. Can students say "under God" in the Pledge of Allegiance? Can states take away private property for private uses? Can Congress restrict campaign contributions and expenditures? Answers to these and other constitutional questions depend critically on how one approaches the interpretive task.

Any sensible approach to constitutional interpretation must look to the core sources of law - the text, structure, and history of the constitution. For many questions, these will provide enough guidance to answer the constitutional question presented. Yet in many other cases, these sources will be unclear.

In those cases, judges commonly look to another source of law: precedent.

Prior decisions, because they are the answers other judges have given to related questions, may help judges interpret sources that, standing alone, are less clear. In addition, because the precedents may provide the strongest basis for predicting how courts will resolve a future issue, following precedent serves an independent value: consistency in the law, which allows citizens to function with firmer expectations that they understand the legal consequences of their actions.

Prior decisions, however, do not bind the Supreme Court in a meaningful way. Precedent is a guidepost, not an endpoint. It is the interpretation of constitutional terms by particular justices in a particular context at a particular time. The interpretation may fit well with core sources of law and may provide insights to applying constitutional commands. But it also may have weak enough legal underpinning that it proves to be a fringe that ultimately will be cut out of the law, not a strand that weaves integrally into the law.

Even a frequently cited and long-standing precedent can be overruled. Think of Plessy v. Ferguson, the decision adopting the "separate but equal" doctrine overruled in Brown v. Board of Education. Plessy was the law of the land for nearly 60 years; its basic holding was reaffirmed repeatedly; and it was relied on by citizens and by federal, state, and local governments in ordering their affairs. Yet its demise today is nowhere lamented.

Plessy and Brown illustrate that all precedents are not created equal, and show why precedents are - and should at times be - laid to rest. Plessy may or may not have been consistent with the original understanding of the 14th Amendment's equal protection clause, but it was distinctly at odds with the most obvious meaning of the clause as written and with what we know of the purposes of those who drafted the Amendment.

Decisions that strain the fabric of the constitution, that do not fit the common meaning of the text, are weak at their inception. Support for Plessy eroded as society - and accepted views of racial morality - changed. But its erosion was every bit as much a matter of legal weakness.

Courts struggled to give meaning to Plessy, and found it grated against common understandings of equality. Brown changed the law as it existed in 1954. It was an extraordinarily controversial decision and sparked decades of intense disagreement over its legitimacy and its implementation. But Brown also followed decades of court decisions undermining Plessy, even while reaffirming it.

Proponents of abortion call Roe a "super-precedent," specially immune to reversal. This catchy phrase was coined by some academics trying to garner publicity for their own ideas of judicial philosophy and their new books. But what makes Roe more "super" than Plessy or any of the other precedents overruled by the Supreme Court? Advocates may be intensely supportive of the result in Roe, but that isn't enough.

Each precedent must be evaluated for its consistency with the Constitution's text and structure. Most justices also would add that it must be evaluated for its fit with other precedents, its coherence with related doctrines, its ability to provide clear guidance to lower courts and to ordinary citizens, and the degree to which reversing it would unsettle important areas of law. On all of these scores, Roe is certainly no stronger than Plessy.

During the confirmation hearings for Judge Alito, much of the attention will be on Roe. Alito has demonstrated respect for precedent as a judge for the past 15 years. Liberal Senators will try to extract a pledge that this respect should translate into a commitment not to reconsider important precedents - like Roe.

For these Senators and liberal interest groups, nominees are acceptable only if they share a belief that the Constitution is a fluid document that can be stretched to accommodate constructions at odds with its words and history, but that freezes in place once a precedent they like is handed down.

Claims to respect precedent cannot be taken seriously if the sources of serious constitutional interpretation are thrown aside whenever they yield inconvenient results. Constitutional interpretation is a serious endeavor, not a game. It won't always yield the outcomes any particular observer will want. But it is the anchor of our government and fidelity to it is the essence of the rule of law.

Honorable Ronald A. Cass, President of Cass & Associates, PC, a legal consultancy in Great Falls, VA, is Dean Emeritus of Boston University School of Law and Co-Chairman of the Committee for Justice. He was Vice-Chairman of the US International Trade Commission, and author of “The Rule of Law in America” (Johns Hopkins Press).

http://www.realclearpolitics.com/Commentary/com-11_17_05_RAC.html