Originalism and the Role of Precedent:

Those who have enjoyed my debate this week with Cass Sunstein, may be interested in a new short paper I have just posted on SSRN concerning the proper role of precedent in a theory of originalism. It is entitled, Trumping Precedent with Original Meaning: Not as Radical as It Sounds. Here is the abstract:

In recent years, originalism as a method of interpretation has grown in its intellectual and practical appeal. The latest challenge to originalism from nonoriginalists is based on the doctrine of precedent. Acceptance of originalism, it is charged, would necessitate the reversal of crucially important landmark decisions and thereby provides a reduction ad absurdum of originalism. Until recently, few originalists have considered carefully the relationship between originalism and the doctrine of stare decisis (though this situation is starting to change).

In this short essay, I contend that original meaning should indeed trump previous Supreme Court decisions that are inconsistent with the original meaning of the Constitution. But the main thrust of the essay explains why this implication is not as radical as it sounds because there remains much room for the doctrine of precedent in originalism. It is not incompatible with original public meaning originalism to adhere to precedent in cases involving (a) nonconstitutional issues, (b) matters of constitutional construction, (c) detrimental reliance by identifiable individuals, (d) epistemic concerns about the correctness of originalist claims, and perhaps also (e) where the text was originally ambiguous.

Knowing the degree to which a commitment to originalism entails the rejection of the doctrine of precedent may well influence the degree to which originalism is deemed acceptable by academics, judges, and the general public. For this reason, it is important to make clear that a commitment to following original meaning where it conflicts with judicial precedent is far less radical a stance than critics of originalism, and perhaps even some originalists, assume.