Originalism and the Role of Precedent:

At the annual meeting of the Law Professor Division of the Federalist Society this past weekend in Atlanta, I moderated a panel on “Transitions to Originalism” which concerned how, if one accepts originalism as the proper method of constitutional interpretation, do you move from where we are to restore the original meaning? An important aspect of this question is the proper role of precedent in a system in which faith is pledged to a written constitution. Larry Solum was one of the panelists and gave an excellent talk. Now he has published an expanded version of his talk on Legal Theory Blog. It poses a wonderful “formalist” challenge to those who, like myself, think that the original meaning of the Constitution is and should be binding on judges. Here is the introduction:

Frequent readers know that I am a self-avowed neoformalist. What does that mean? Putting it in the negative, I reject the idea that law should be used instrumentally by judges to achieve the judge’s idea of what constitutes good policy. On the positive side, I have argued that judges should adhere to “the rules laid down,” roughly the text of statutes and constitutions in light of evidence of their original meaning. For a very brief summary of my views, surf to A Neoformalist Manifesto. In this post, I will simply assume that a formalist legal regime is the goal, and ask the next question: “How can we get to formalism?” This is too big a question for a single blog post, so I will limit my discussion to an important subset of this question: “How can we get to a formalist constitutional regime?”

I am not going to argue for the virtues of formalism. Instead, for the sake of argument we can begin with the assumption that the goal is a formalist constitution–more or a less a constitutional regime where courts look to the text, structure, and original meaning of the Constitution as sources of interpretive authority and not a regime where judges rely on their own beliefs about what is just or what will produce the best consequences as a source of constitutional law.

We do not have a formalist constitution today. What if we had the political will to achieve that goal? What is the best way to get to constitutional formalism? . . .