If they are to maintain credibility with those who are not already sold on their views, originalists need to respect the discipline of history.
Since I was away on vacation when this debate began, I am coming late to the party. But I have some distinctive views on this issue and so I thought I would write some posts about the matter.
I should start out by saying that I have something of an intermediate view of the matter – I recognize that both sides have some strong points to make. In the end, I stand much closer to the judicial supremacy side, but for different reasons than at least some of those defending the position.
I originally encountered this issue in law school and especially at the Meese Justice Department when Attorney General Meese gave a speech defending departmentalism. I initially was attracted to a moderate departmentalist position, but over time I began to have second thoughts. By the time I published this paper (here and here) in 1993, I had already moved towards seriously doubting the departmentalist position. And I have only become more skeptical over time.
Let me start by drawing some distinctions. In general, departmentalism is the view that each department or branch of the federal government makes decisions as to the law based on its own views. Thus, the courts are not bound by the decisions of the Congress or the President. And the Congress and the President are not bound by the decisions of the courts. By contrast, judicial supremacy is the view that the Congress, the President (and the states) are required to follow the decisions of the courts. (The recent debate has focused on constitutional questions, but it need not do so. To conform to what others are discussing and to avoid making things too complicated, I will generally limit myself to constitutional matters.)
This general statement of departmentalism, however, glosses over a key distinction – the distinction betweeen departmentalism as to judgments and departmentalism as to precedents.
Departmentalism as to judgments holds that the executive (and the Congress) are not required even to follow the judgments of the courts. Consider the following extreme example. The executive branch imprisons an individual, who seeks a writ of habeas corpus and prevails in the courts. While the courts order the executive to release the individual, the President disagrees with the court’s view of the Constitution and refuses to follow the order. Under departmentalism as to judgments, the President’s action here is lawful, because he is not bound by the constitutional views of the courts.
By contrast, under departmentalism as to precedents, the President’s action here would be unlawful. While the President is not obligated to follow the court’s constitutonal views in future cases, he is required to follow the judgments of the courts in specific cases. Thus, the President must release the individual involved in this example. In a future case, the President would not be required to follow the court’s decision – its precedent – until a court issued a judgment.
For the most part, I will ignore the departmentalism as to judgments position – even though a few commentators appear to hold it – on the ground that it is an extreme minority position and one that has very little basis in the original materials. I know of no real originalist evidence that supports it and it has the enormous problem of rendering judicial decisions to be effectively nonbinding, which is inconsistent with a large amount of originalist evidence.
Thus, the real question is whether judicial supremacy or departmentalism as to precedents is the correct position.