December 12, 2016

RANDY BARNETT: Abandoning Defensive Crouch Conservative Constitutionalism.

As Tushnet helpfully previewed, had Clinton been elected, thirty years of “conservative” tinkering-at-the-margin was going to be swept away and much, much more. No doctrine of stare decisis or “precedent” would have stood in the way. The left side of the Court has never conceded the precedential value of the past 30 years of “conservative” decisions. In constitutional law, the doctrine of stare decisis is a ratchet and ratchets only go one way, and that way is towards increased national power, and delegation to the Administrative-Executive State–qualified only by judicially-selected “fundamental rights” and protected “suspect classes.”

But Tushnet was right in principle. As I have long maintained (see here), the law of the Constitution should take priority over the mistaken rulings of previous justices. What Tushnet and I disagree about is what the Constitution means. He thinks it means progressive results; I think it means what it says. If New Deal, Warren and Burger court decisions were–in Tushnets words–“wrong the day they were decided,” then they should be reversed and replaced by the original meaning of the Constitution itself. . . .

It is high time for conservative justices to follow Tushnet’s advice for progressive judges and reconsider cases they know full well to be in conflict with the Constitution’s original scheme (as amended). If they conflict with the original meaning of the Constitution, these cases were “wrong on the day they were decided.”

Yes. And I think Randy Barnett would be an excellent Supreme Court appointment.

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