27 April 2016

Precedents Trump Texts

The following was recently posted at the Legal Theory Blog:
David A. Strauss (University of Chicago Law School) has posted The Supreme Court, 2014 Term—Foreword: Does the Constitution Mean What it Says? (129 Harvard Law Review 1 (2015)) on SSRN. Here is the abstract: 
The conventional view is that constitutional law begins with the text of the Constitution and proceeds from there. But that misdescribes U.S. constitutional law. Controversies in constitutional law are, almost always, about the meaning and effect of precedents, not about the text. Many important principles of constitutional law are inconsistent with the most natural reading of the text. The precedents govern the text, rather than the other way around; the text becomes important only when there are few precedents. 
Constitutional law, in a word, is not a text-based system, but a mixed system in which provisions of the text are treated roughly like precedents: they are expanded, limited, qualified, reconceived, or all-but-ignored, depending on how the law develops, and on judgments about how the law should develop. 
Highly recommended!  Wrong, wrong, wrong!  I think most readers of LTB have already read Strauss's wonderful and brave piece, but if not, download it while it's hot!| 

Unlike Lawrence Solum, I tend to think that David A. Strauss is not just right, but is rather obviously right in a descriptive sense of how constitutional law actually works in practice.

In the European civil law system, any judge can use the text of a statute to trump a statutory interpretation of that text.  In the English common law system of jurisprudence, in contrast, precedents interpreting statutes are especially strong and are honored even when they call for an unnatural reading of the text, in order to promote certainty.  The "super precedent" status of cases interpreting statutes, which can in principle easily be amended by the legislature doesn't apply with quite the same force in constitutional cases.  But, the same general method of construing statutes in light of precedents still applies.

Examples of non-obvious interpretations of the United States Constitution that have the force of law as a result of precedents (not exclusively, but often, from the U.S. Supreme Court) are legion.

For example, there is no way that you could determine from the face of the 11th Amendment to the United States Constitution that it codifies state sovereign immunity from suit.

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