"Even if I were wrong, however, about the original meaning of the Constitution, or the assumption adopted by the Eleventh Amendment, or the structural necessity for federal-question suits against the States, it cannot possibly be denied that the question is at least close. In that situation, the mere venerability of an answer consistently adhered to for almost a century, and the difficulty of changing, or even clearly identifying, the intervening law that has been based on that answer, strongly argue against a change. As noted by the Welch plurality, "Hans has been reaffirmed in case after case, often unanimously and by exceptionally [491 U.S. 1, 35] strong Courts"; its reversal "would overrule at least 17 cases, in addition to Hans itself" and cast doubt on "a variety of other cases that were concerned with this Court's traditional treatment of sovereign immunity." 483 U.S., at 494, n. 27. Moreover, unlike the vast majority of judicial decisions, Hans has had a pervasive effect upon statutory law, automatically assuring that private damages actions created by federal law do not extend against the States. Forty-nine Congresses since Hans have legislated under that assurance. It is impossible to say how many extant statutes would have included an explicit preclusion of suits against States if it had not been thought that such suits were automatically barred. Indeed, it is not even possible to say that, without Hans, all constitutional amendments would have taken the form they did. The Seventeenth Amendment, eliminating the election of Senators by state legislatures, was ratified in 1913, 23 years after Hans. If it had been known at that time that the Federal Government could confer upon private individuals federal causes of action reaching state treasuries; and if the state legislatures had had the experience of urging the Senators they chose to protect them against the proposed creation of such liability; it is not inconceivable, especially at a time when voluntary state waiver of sovereign immunity was rare, that the Amendment (which had to be ratified by three-quarters of the same state legislatures) would have contained a proviso protecting against such incursions upon state sovereignty."
Thomas' apparent willingness to reconsider the post-New Deal commerce clause cases might suggest a disagreement with Scalia on this point.
Richard Doughery
"Conkle, Daniel O." wrote:
Might not a judge--originalist or otherwise--simply conclude that stare
decisis has independent value, in terms of legal stability, reliance,
etc.? In this respect, is the originalist judge necessarily different
from, say, a judge who believes that the Constitution should be
interpreted in accordance with liberal philosophy, e.g., as understood
by John Rawls? Might not either judge conclude that a mistaken decision
should nonetheless be honored for reasons apart from the interpretative
theory that the judge would apply if precedent were not a factor?Dan Conkle
**************************************
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana 47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**************************************-----Original Message-----
From: Larry Solum [mailto:[EMAIL PROTECTED]]
Sent: Wednesday, October 15, 2003 1:39 PM
To: [EMAIL PROTECTED]
Subject: Precedent & Originalism: Was Scalia, Textualism, and PrintzIt seems to me that the question for originalists is WHETHER a "judicial
decision is a superceding text adopted through a legitimate process."
This
question has at least two dimensions, one functional and the other
normative.The functional question is whether precedents are to be treated as
superceding, and if so, how, when they are out of line with the plain
meaning
of the constitutional text or its original meaning. Originalists may
divide
on precisely this point. On the one hand, some originalists may argue
that
adherence to precedent serves the same rule of law values as does
originalism
and textualism. On the other hand, other originalists may argue that
precedents which depart from the text or original meaning should not be
afforded precedential effect. A fully specified theory of originalism
must
have an answer to the functional question.The normative question concerns the political morality of treating
precedents
as authoritative even when they depart from text or original meaning.
Different versions of originalism will take different positions on the
normative question as well. Thus, popular-sovereignty originalists
might take
the position that judicial decisions that are not authorized by "We the
People," are illegitimate, and hence not binding. Other
originalists/textualists emphasize rule-of-law values as the normative
foundation of originalism, and these originalists may find it easier to
swallow Professor Earl Maltz's position: "A judicial decision is a
superceding
text adopted through a legitimate process (even if the mode of reasoning
is
not what I would choose)."It goes without saying that the normative and functional questions are
closely
connected, but they are not the same question. Originalist/texutalists
with
similar normative positions might endorse different answers at the
functional
level, and vice versa.Larry
Lawrence Solum
University of San Diego
http://lsolum.blogspot.comQuoting earl maltz <[EMAIL PROTECTED]>:
> I must be getting slow in my old age, but I don't see how precedent
poses a
> greater problem for originalists than for those who take other views.
A
> judicial decision is a superceding text adopted through a legitimate
> process (even if the mode of reasoning is not what I would choose).
It is
> thus analogous to (although different from) a legitimately-adopted
> constitutional amendment.
>
> At 12:23 PM 10/15/2003 -0500, Richard wrote:
>
> The question of the authority of
> >precedent is obviously a significant challenge for originalists, but
Scalia
> >does address this issue in a number of places (including in his
dissent in
> >Union Gas, if I remember correctly).
> >
> >Richard Dougherty
> >University of Dallas
> >
>
> >>
> >>
> >
>
