Originally I was not an originalist. For most of my career, I rejected originalism because I accepted as valid the standard academic criticisms of the version of originalism that became popular in the 1980s, which was based on the intentions of the framers and justified on grounds of popular sovereignty. Gradually I was moved in the direction of originalism, not by any external argument, but by my longstanding interest in and writings about the views of the founders. Eventually I adopted a version of originalism based not on the intentions of the framers, but on the public meaning of the text at the time of its adoption and justified, not by popular sovereignty, but by the fact that the constitution is in writing. Its writtenness is a structural feature of the Constitution that would be undermined unless its meaning remains the same until it is properly changed. In short, while I still accept the traditional criticisms of originalism, I do not think they apply to this modest version of originalism justified in this manner.
It is not my intention to completely explain this argument here. I do so elsewhere. I raise this issue as background to the following observation: Originalism (of any version) now confronts a new intellectual challenge: How to handle precedent. If the meaning of the Constitution should remain the same until it is properly changed, as originalists contend, suppose that the Supreme Court gets this meaning wrong, as they have so many times in the past (in part because they largely ignore original meaning)? Is a future Court free to disregard precedent whenever it concludes that the prior case got the text wrong? Like my BU colleague Gary Lawson, I am inclined to say “yes” but Larry Solum has recently made some powerful arguments in favor of the role of precedent for formalism that cause me to reserve judgment until I have given the matter more serious thought.
Recently, I moderated a panel on this topic at the annual meeting of the Federalist Society’s Law Professor Division in Atlanta. On the panel was Larry Solum (San Diego)–to whose lengthy comments on Legal Theory Blog I previously linked–Rick Kay (UConn), Steve Calabresi (Northwestern), Keith Whittington (Princeton) and Mike Rappaport (San Diego). Now Mike has posted his views of the subject on The Right Coast. Larry Solum also recommends it and provides additional related links here. You should check it out as I predict that the proper relationship between precedent and originalism will be a subject of intellectual controversy and debate both among originalists and with their critics for some time to come.
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