November 17, 2005
Precedent and the Constitution
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
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:
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
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
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
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.
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