I do not subscribe to the view associated with many formalists that the content of all constitutional rules is to be discovered in some immutable original understanding. Instead, I prefer to deploy a If conventionalist" approach to constitutional interpretation, drawing upon a variety of sources that our legal community regards as authoritative.s These sources include the text of the Constitution and the evidence of the Framers' intentions, but also encompass the outcomes reached by the Supreme Court and other interpreters in applying the text to different controversies over time, as well as the evolved practices of the three branches of government.

This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally. First, the debate has been dominated to far too great an extent by specific cases, Roe v. Wade (1) in particular. It is distressing that the only issue that has seemed to matter in recent confirmation hearings is what a nominee thinks about Roe v. Wade. Similarly, in the precedent versus originalism debate, much of the discussion--even in the law reviews--is animated by what commentators think about Roe v. Wade. So, if you think Roe v. Wade was an illegitimate usurpation of power by the judiciary, and you want to overrule it, it somehow follows that you think all constitutional law should be based on something other than precedent. On the other hand, if you like Roe v. Wade, and you want to reaffirm it, somehow all precedent must be a good thing. This is an extraordinarily myopic way of thinking about the problem. Those who regard themselves as conservatives and embrace some of the values that David Strauss mentions--the rule of law, stability and predictability in the law, judicial restraint, the belief that social policy decisions should be made by elected representatives of the people rather than by the judges (2)--should not have their views on precedent versus originalism driven by one case. Second, we cannot resolve the debate by adopting the conceptual apparatus of one school or the other, and by pointing out that the rival approach has no place within the conceptual apparatus we adopt. To a large extent, originalism and precedent reside in parallel universes that do not intersect. The case for originalism starts with legal positivism, the idea that only enacted law is the law of the land. (3) Starting from this assumption, it follows that when there is an ambiguity in the law, we should try to resolve it by determining the meaning of the lawgiver. Such an approach naturally leads to looking at original sources for interpreting the As Steven Calabresi implicitly frames the question, Does originalism say that precedent can trump the enacted law? (4) The answer, of course, is No, it does not. If we start from originalist premises, we do not leave much room for precedent or stare decisis. Conversely, if one starts from the universe of precedent, that universe is founded in the Holmesian observation that the law is, ultimately, the judgments of the courts. (5) If you adopt this perspective, you say, Well, what predicts the judgments of courts is the precedents of courts, and therefore precedent is law. So, if we want to know whether or not following precedent is permissible, we find the answer by looking to precedent. And guess what we find? Judges say we ought to follow precedent. So precedent it is. This universe does not leave much space for the Constitution and enacted Thus, we have two parallel universes that operate on different planes: the universe of enacted law, and the universe of judge-made One cannot reason from the premises of one to oust the other. The reality is that every Justice, at least since the days of the Marshall Court, has relied to some extent on both originalist reasoning and precedent. Professor Calabresi is absolutely correct that when moments of high drama and crisis arise, the Justices tend to revert to the constitutional text and to the statements of the Framers. (6) On the other hand, studies of the Justices have indicated that approximately eighty percent or more of the authorities they cite in their constitutional opinions are precedents of the Supreme Court. (7) The most careful study examined the opinions of Justices Rehnquist and Brennan, who were the prototypical ideological outliers at the time the study was conducted. (8) Presumably, centrist judges rely on precedent to an even greater extent. …

Private property plays two opposing roles in stories about the environment. In the story favored by most environmentalists, private property is the bad guy. (1) It balkanizes an interconnected ecosystem into artificial units of individual ownership. Owners of these finite parcels have little incentive to invest in ecosystem resources and every incentive to dump polluting wastes onto other parcels. Only by relocating control over natural resources in some central authority like the federal government, can we make integrated decisions designed to preserve the health of the entire ecosystem. For these traditional environmentalists, private property is the problem; public control is the solution. There is a counter story, told by the proponents of what is sometimes called free market environmentalism. (2) In this story, private property is the good guy. Environmental degradation is a problem because of incomplete property rights. If all resources were privately owned, then no one would be able to impose externalities on anyone else; potential polluters would have to purchase the right to pollute first. Similarly, if all resources--including habitats of endangered species and other ecologically sensitive resources--were privately owned, then owners would have incentives to invest in the preservation of these resources, and would use their ingenuity to get persons who care about environmental protection to pay for it. For free market environmentalists, public control of resources is the problem; private property is the solution. Both sides in this debate are only half right. The traditional environmentalists are closer to the mark in their diagnosis of the problem. Property rights are always and inevitably incomplete, as it is costly to set up and enforce any system of private property. Because property rights are incomplete, owners of resources that are subject to private ownership--such as parcels of land devoted to productive uses--will always have incentives to disregard the costs they impose on common resources that are not subject to private ownership. Sometimes creating new types of property rights can help the situation; more often, however, the only cost-effective solution to these sorts of spillovers is government regulation. On the other hand, the free market environmentalists are closer to the mark in devising a solution to the problem. Missing from the traditional account is any credible theory of how we can generate collective action to protect sensitive ecosystem resources. Bursts of collective altruism do happen, but they are difficult to sustain. Witness the history of socialism, or, more pertinently the history of environmentalism. (3) What is needed is an institutional arrangement that generates private incentives supporting collective action that will protect the environment. The best such arrangement is the widespread private ownership of land. In this sense, the free market environmentalists are closer to the mark in their prescription of a cure than are the traditional environmentalists, with their call for a bigger government. I. Casual empiricism strongly suggests that private property is good for the environment. Eastern Europe in the 1980s offered a kind of natural experiment about the effects of different property regimes. (4) An iron curtain ran through Eastern Europe from the Baltic to the Mediterranean. West of the line, real property was predominately subject to private ownership. East of the line, real property was owned by the state. The results were plain for all to see: while towns and villages on the west side were typically neat and clean, with well-scrubbed streets and colorful boxes of flowers in the windows, towns and villages on the east side were drab and dirty, with plaster falling off the walls and no flowers to be seen anywhere. These paired communities were generally composed of buildings of the same vintage and style of construction and were populated by families having the same ethnic background and cultural traditions. …

The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions are dictated by law. This is the central thesis of the extraordinary joint opinion in Planned Parenthood v. Casey,' decided by the Supreme Court at the end of the 1991 Term. The joint opinion observes that the Court's power lies in its legitimacy, and that its legitimacy is "a product of the substance and perception" that it is a court of law. Thus, frequent overrulings are to be avoided, because this would "overtax the country's belief' that the Court's rulings are grounded in law. Especially when a controversial ruling like Roe v. Wade is involved, a decision to overrule should be avoided at all costs, because this would give rise to the perception that the Court is "surrender[ing] to political pressure" or "over-nul[ing] under fire." Such a perception, in turn, would lead to "loss of confidence in the judiciary." Translated, the thesis of the joint opinion is that the further a decision deviates from the Constitution, the more important it is for the Court to adhere to that decision, or else the public may conclude that the emperor is wearing no clothes. If no hope can be expected from the Court on its own initiative, then what should persons who believe in judicial restraint and the rule of law do? One positive step would be to have the Federalist Society, which contains many individuals of this description, cease promoting the idea that legal questions have right answers. Instead, the Federalist Society should dedicate itself to promoting deconstructionism, Critical Legal Studies, feminism, Critical Race Theory, and the widest possible cacophony of liberal constitutional theories. The message conveyed by these enterprises is that the Supreme Court is a political institution. The more widespread this perception becomes, the closer will come the day when the Court behaves like a court of law.

One of the subthemes in the delegation debate concerns the importance of judicial review. Supreme Court has often upheld broad delegations to administrative actors and in so doing has pointed out that judicial review is available to safeguard citizens from the abuse of unconstrained government power. (1) Broad delegations of power to executive actors are constitutionally permissible, the Court has suggested, in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making. (2) Administrative law professors have underscored this point. Professor Kenneth Culp Davis, in his inimitable style, took the theme to the utmost extreme. He argued that what is really significant about the nondelegation doctrine is not that Congress must provide an intelligible principle, but that judicial review is available to make sure that administrative agencies follow the principle. (3) What matters is that someone, somewhere, supplies a standard for the exercise of administrative discretion and that the courts can enforce this standard. (4) It does not really matter where the standard comes from. Congress might supply it, but so too might an agency or even a court. important thing is to have some standard to control discretion, plus judicial review. Court rejected this particular idea in Whitman v. American Trucking Associations. (5) Justice Scalia, writing for the Court, dismissed as internally contradictory the notion that an agency could cure a nondelegation problem by adopting a self-limiting standard. (6) As he explained: The very choice of which portion of the power to exercise--that is to say, the prescription of the standard that Congress had omitted--would itself be an exercise of the forbidden legislative authority. (7) What has been less noticed about American Trucking is that the Court, having interred the self-limiting-standards idea, also omitted the ritual bow to judicial review as an important safeguard against abuses of broad delegations. To be sure, the Court reaffirmed that the question whether a statute violates the nondelegation doctrine is for the courts to decide. (8) And the Court engaged in vigorous judicial review of the agency decision that triggered the nondelegation challenge, holding that the agency's decision was unreasonable. (9) But neither Justice Scalia nor any of the concurring Justices said that the availability of judicial review was itself a relevant element in resolving the delegation challenge. Which leads to my topic: What is the role of judicial review in determining the constitutionality of broad delegations of power in a world in which the intelligible principle doctrine is, for practical purposes, dead? To make this question concrete, let me describe a petition for certiorari recently denied by the Supreme Court in County of El Paso v. Napolitano. (10) petition was filed in December 2008 by the Yale Law School Supreme Court Clinic, of which I am currently a supervisor. Court denied certiorari on June 15, 2009, (11) after the conference relisted the petition seven times. (12) As is usual, the Court gave no explanation for the denial. petition challenged an amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), (13) which instructs the Secretary of Homeland Security to build a barrier fence along portions of the border between Mexico and the United States to help control illegal entry into the United States. (14) Congress sought to assure that the fence was built as quickly as possible and, in particular, that this multimillion dollar construction project would not become bogged down in litigation. To achieve this objective, Congress amended IIRIRA in 2005. (15) amended statute, in Section 102(c), delegates authority to the Secretary of Homeland Security to waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of [the fence]. …

In one of his last opinions before retiring, Chief Justice Warren Burger acknowledged that the soundness of Roe v. Wade(1) be tested by the decisions that purport to follow [it].(2) Declaring that the Court reexamine Roe,(3) Burger found it astonishing that the Court had rejected a requirement that a second physician be present during the abortion of a viable fetus, given Roe's finding of a compelling governmental interest in the life of a viable fetus. He also objected to the Court's invalidation of informed consent and parental notification regulations. The Chief Justice claimed that that while the Roe Court had clearly rejected the right to abortion on demand, post-Roe decisions had implemented a policy encouraging abortion as a positive good.(4) Thus, while Burger joined Justice Blackmun's majority opinion in Roe,(5) he dissented from Justice Blackmun's majority opinion in Thornburgh v. American College of Obstetricians and Gynecologists.(6) Six years later in Planned Parenthood v. Casey, the Court, sans Burger, was closely divided over the continued soundness of Roe.(7) Four Justices explicitly argued that Roe should be overruled,(8) while two Justices argued that Roe should be reaffirmed and applied in the absolutist manner Burger had found so objectionable.(9) Justices Kennedy, O'Connor, and Souter, who authored the decisive joint opinion, claimed to be reaffirming the essential core of Roe while removing from it, and from the post-Roe decisions, the absolutist elements.(10) The joint opinion purported to accord respect to the relevant state interests, and thus claimed a willingness to uphold abortion regulations so long as the core right of a woman to decide whether or not to abort a non-viable fetus was not violated. In Stenberg v. Carhart,(11) Justice Kennedy played the role of Chief Justice Burger. Kennedy, like Burger before him, complained that the moderate decision he joined was misapplied by the majority to invalidate minimalist abortion regulations. Somehow, the moderate Casey precedent was used to justify the more encompassing Stenberg decision.(12) While Justice Kennedy has not yet called for a reexamination of Roe or Casey, his Stenberg dissent forcefully expressed a sense of betrayal and even moral revulsion regarding the majority's interpretation of Casey. Chief Justice Burger's belief that a precedent must be judged -- and understood -- by the opinions that apply it should be taken seriously. Therefore, it is appropriate to examine why the Roe and Casey doctrines have been expanded to the point where both relevant state interests and traditional rules of constitutional adjudication are now completely submerged. This pattern has not developed randomly, but instead arose from medical, cultural, and psychological factors inherent in the abortion liberty. Particularly because the joint opinion in Casey avoided a reexamination of the abortion liberty by arbitrarily invoking the principle of stare decisis,(13) the Court should engage in a thorough analysis of the nature and structure of abortion liberty in future cases. The Supreme Court's abortion jurisprudence has developed as a part of the broader doctrines of substantive due process and the right of privacy. The question of unenumerated rights posed by these doctrines goes to the heart of the Court's role within our system of government, and can raise troubling issues as to the legitimacy of the Court's decisions. It is one thing for the Court, following the theory of Marbury v. Madison,(14) to invalidate legislation found to be in clear violation of an explicit constitutional command; it is quite another for the Court to claim the authority to invalidate legislation based on rights not mentioned in the Constitution. Unless such unenumerated rights can be firmly grounded in the overall text, structure, history, principles, or jurisprudence of the Constitution, their use to invalidate legislation can appear illegitimate. …