Free America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar

pronouncements over the best interpretation of the Constitution itself.
    Casey can also be read as highlighting the fact that the vast majority of recent overrulings have been based not solely on the fact that the earlier case was wrongly decided as a matter of pure constitutional meaning, but also on other factors. These other factors have included the general unworkability of the old precedent (as made clear by subsequent experience), the old precedent’s inconsistency with other cases decided before it or after it, and the old precedent’s incompatibility with later factual developments. Perhaps Casey simply meant to say that when these factors exist, they should be stressed by the overruling Court.
    But if these factors were the only ones justifying overrulings in cases involving constitutional meaning, we would be left with a vision of constitutional law more Court-centered than Constitution-centered: A case could be overruled if it did not fit well with other cases, but would be retained if it simply did not fit well with the document.
    It is understandable that, for reasons of institutional prestige, the Court might prefer, when overruling itself, to do so on grounds that downplay admission of past error. Such an approach allows the current Court to say that the past case was perhaps sensible when decided, but has been eclipsed by later legal and factual developments that could not have been perfectly foreseen when the Court first acted.
    Yet even as we strive to understand the Court’s institutional desire to avoid shouting from the rooftops that the Court itself has blundered badly in the past, we must also note the dangers of unchecked institutional self-aggrandizement.(The Court of late has been fond of making sweeping assertions of judicial supremacy, regularly proclaiming itself the Constitution’s “ultimate” interpreter—a self-description that nowhere appeared in Marbury , and indeed never appeared in the United States Reports until the second half of the twentieth century.) 22
    If the justices generally felt free (or obliged!) to follow clearly erroneous case law concerning the core meaning of the Constitution, then the foundational document might ultimately be wholly eclipsed. Rather than simply filling the document’s gaps, judicial doctrine would erase its outlines. If the written Constitution indeed contemplated this odd result, one would expect to see a rather clear statement to that effect: “This Constitution may be wholly superseded by conceded judicial misinterpretations; all branches are oath-bound to follow these misinterpretations.” But the Constitution says nothing of the sort. On the contrary, it explicitly and self-referentially obliges all officials to swear oaths to itself, not to conceded misinterpretations of it.
    The Constitution establishes a system of coordinate powers. If neither the legislature nor the executive may unilaterally change the document’s meaning, why may the judiciary? The Constitution details elaborate checks and balances. If conceded misinterpretations become the supreme law of the land, what checks adequately limit judicial self-aggrandizement? Prior to the Constitution’s ratification, none of its leading friends put forth anything like the Casey dictum, broadly read. Rather, the basic structure of the document suggested to ratifiers that whatever “We the People” deliberately laid down could not be changed, except by a later amendment reflecting wide and deep popular approval.
    In the case that the modern Court views as the very fountainhead of judicial review, Marbury v. Madison , Chief Justice Marshall declared that the American people’s “original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness” was “the basis on which the whole American fabric has been erected.” Marshall went on to observe that “[t]he exercise of this original right is a very great