The Conflict Between Stare Decisis and Overruling in Constitutional Adjudication
Neither Supreme Court Justices, nor scholars who have written on the subject, take the view that the Constitution constrains the Court’s power to overrule its constitutional precedents. This essay argues that the Fifth Amendment’s Due Process Clause requires a constitutional law of overruling. Moreover, it proposes such a law on the basis of a conjunction of Marbury v. Madison, Martin v. Hunter’s Lessee, and Cohens v. Virginia, together with Article III’s “case or controversy” requirement. I suggest that the Court should ask whether a precedent in question significantly impairs the constitutionalized Rule of Law. If it does, stare decisis would lapse for the Court, which then could freely consider whether to overrule. I argue that this approach provides due process, is conceptually sound, and is normatively attractive in the constitutional context.
An Originalist Theory of Precedent: The Privileged Place of Originalist Precedent
In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory. First, I briefly review the debate in originalism over the role of constitutional precedent. Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist precedents. Third, in the heart of the Article, I explain the roles of originalist precedent in constitutional interpretation, described by the Interpretative and Constructive Approaches toward precedent. The Interpretative Approach is that originalist precedent serves the epistemic role of providing presumptive evidence of the original meaning and its proper application. The Constructive Approach is that originalist precedent serves the creative role of determining the defeasible content of the Constitution’s meaning. Next, I explain how the Interpretative and Constructive Approaches operate in practice. I show that originalist precedent serves the roles of implementing the original meaning, embedding the original meaning in constitutional law, and affecting other areas of constitutional law through its gravitational force. In so arguing, I will elucidate how the role of originalist precedent varies depending on whether the context is one of constitutional interpretation or constitutional construction. Then, I briefly revisit the original meaning of “judicial Power” in Article III, which requires federal judges to give significant respect to constitutional precedent. I show that the Interpretative and Constructive Approaches meet Article III’s mandate. More importantly, they show that it makes sense to follow Article III’s mandate. The conception of originalist precedent offered in this Article completes the circle of my originalist theory of precedent. In an earlier article, I showed why and how judges should give nonoriginalist precedent significant respect. In this Article, I finish that project by showing how judges should give originalist precedent significant respect via the Interpretative and Constructive Approaches.
ATP-dependent S-(2,4-dinitrophenyl)glutathione transport in canalicular plasma membrane vesicles from rat liver.
Uptake of the thioether S-(2,4-dinitrophenyl)glutathione (DNPSG) in canalicular plasma membrane vesicles from rat liver is enhanced in the presence of ATP and exhibits an overshoot with a transient 5.5-fold accumulation of DNPSG. Stimulation by ATP is not caused by the generation of a membrane potential, based on responses of the indicator dye oxonol V. ATP-dependent uptake has an apparent Km of 71 microM for DNPSG and a Vmax of 0.34 nmol.min-1.mg of vesicle protein-1. Protein thiol groups are essential for transport activity as indicated by the sensitivity of DNPSG transport to sulfhydryl reagents. There is competitive inhibition with other thioethers, S-hexylglutathione (Ki = 66 microM), the photoaffinity label S-(4-azidophenacyl)glutathione (Ki = 56 microM), as well as with glutathione disulfide (Ki = 0.44 mM) and with the bile acid taurocholate (Ki = 0.61 mM). GSH (2 mM) or cholate (0.4 mM) does not inhibit. Both glutathione disulfide and taurocholate show ATP-dependent transport in the canalicular membrane vesicles which is inhibited by DNPSG. No ATP-dependent transport is found for GSH. Transport of DNPSG is also inhibited competitively by alpha-naphthyl-beta-D-glucuronide (Ki = 0.42 mM) but not by alpha-naphthylsulfate (2 mM), and there is substantial inhibition with the glucuronides from ebselen and p-nitrophenol. The results indicate that the canalicular transport system for DNPSG is directly driven by ATP and that the biliary transport of other classes of compounds may also proceed via this system.