Inferring and Explaining

119 What does it mean to talk of “due process of law,” “equal protection of the law,” “cruel and unusual punishments,” or “respecting an estab- lishment of religion”? And yes, this text had an author, but in this case, that author was a col- lective composed of the “founders,” including, but not limited to, those at the Constitutional Convention (surely Jeferson counts) as well as those who authored its amendments. And what of those responsible for voting each time rati- fcation was required? So what do we do about cases where the authors disagreed?Teir words were at times (to say the least) unclear, they are all dead now, we’re not really sure who to count or not in the collective, and there must have been cases where they disagreed with one another (think of slavery). Tis doesn’t, at least in my mind, mean that the model of textual interpretation we devel- oped earlier must be abandoned for the Consti- tution. But it does mean the model is far from simple and will likely result in many controver- sial interpretations for even the fairest andmost conscientious user. Precedent It’s easy enough to imagine a system where every time an issue comes before a judge, she would simply exercise her professional knowl- edge and render the opinion that she believed is correct. We are lucky, though, that that is not our system. Consider what it would be like to never really have an idea about how a tricky case in torts or contracts would be decided. How could you conduct business or decide on what kind of insurance to have? Afer all, in our imagined system, each case would be decided afresh and depend on that judge’s view of the law and justice. Te English and American common law sys- tem puts a high premium on previous decisions by other courts and judges. Te doctrine of prec- edent says the earlier decisions help defne what the current state of the law is. Tere are many complications with this simple model. For one thing, there is a hierarchy of courts in our state and federal system. And precedent is only bind- ing on lower courts following the decisions of higher courts. In addition, precedent onlymakes sense for “similar” kinds of cases for which the same articulated “principles” apply. Obviously, there’s a good deal of room for disagreement about all this. Finally, courts, at least at the same or higher level, can overturn precedent on the grounds that the earlier court made a mistake or that circumstances had so radically changed that the earlier principles no make sense. Now there is no higher court than our Supreme Court, but they do make it a practice to honor earlier Supreme Court precedent. Tis usually happens when they choose to not even hear a case because it is settled constitutional law. But even in those cases they do decide to hear, there is, and I believe there should be, great deference to earlier rulings. Tere are occa- sions, however, where the Court will, and again I believe should, explicitly overturn an earlier decision. Inference to the Best Constitutional Interpretation Te constitutional text, and what we know of its authors, provides a good deal of data that needs to be explained. CaPItal PunIshment and the ConstItutIon