If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic debate about originalism versus stare decisis, as if they were rival modes of interpretation that could operate to the exclusion of the other. But the question of practical importance is one of degree and emphasis: in cases where these two sources of authority arguably point in different directions, which one should have a greater claim to our allegiance?
Originalism--interpreting the text in accordance with the understanding of the Framers--is arguably the more fundamental principle. Insofar as our legal system rests on legal positivism or the command theory of law--which it largely does, at least with respect to enacted law--then the Constitution must be regarded as the supreme command of the ultimate lawgiver, the People. When asking what command the People have given, it makes sense to ask what the People understood the provisions of the Constitution to mean at the time they were adopted. Thus, when questions of first impression arise, or disputes erupt about whether particular precedents should be overruled, nearly all Justices seem to regard evidence of original understanding as being relevant to resolving the issue. (1)
Yet if originalism has a strong claim to superiority in theory, stare decisis--resolving cases in accordance with the previous judgments of courts that have considered the question--undoubtedly dominates in terms of practice. By some counts, 80 percent of the justificatory arguments in Supreme Court constitutional law opinions are grounded in precedent, (2) and a very large proportion of cases are decided without any argument based on the text of the Constitution or any reference to historical evidence bearing on original understanding. I would add that no Supreme Court Justice since the days of John Marshall has been able to write constitutional law opinions without giving substantial weight to precedent--and this includes all of the current Justices, no matter how committed they may be in the abstract to originalism. (3)
Thus, both originalism and stare decisis are important to our constitutional system. The relevant question is which way we should tilt in cases of doubt. Simplifying a bit, the question of tilt can be reduced to how strong a version of stare decisis the Justices should apply in constitutional cases. Should the Justices embrace a weak theory of precedent, regarding prior judgments as presumptively correct but subject to overruling based on a demonstration of error? Or should the Justices adopt a strong theory of precedent, regarding prior judgments as legally binding and subject to overruling only on a showing of some special justification beyond mere error--such as a demonstration that the precedent has become unworkable or that it conflicts with other precedent? (4)
In this essay, I argue that adopting a strong theory of precedent in constitutional law would have at least one consequence that I regard as desirable: it would promote judicial restraint. This is not, to be sure, the only relevant value by which to evaluate the choice. (5) There are obviously other factors to consider, such as the alleged need to encourage "flexibility" in the interpretation of the Constitution given the difficulty of amending it. (6) But judicial restraint is the only value I will focus on here, leaving the more complete (and complicated) weighing or pros and cons for another day.
In arguing for a strong theory of precedent on grounds of judicial restraint, I recognize that I am staking out an idiosyncratic position. Judicial restraint is generally thought to be a conservative value, yet most conservative constitutional law scholars today seem to favor a weak theory of precedent. Gary Lawson and Michael Paulsen, for example, have argued that precedent should always give way to a showing of inconsistency with the original meaning of the Constitution. (7) Randy Barnett and Steve Calabresi, although adopting more nuanced positions, are sympathetic with this view. (8) In contrast, defenders of a precedent-based approach, such as David Strauss, are more likely to be liberals. (9) To some extent, I suspect these positions have been shaped by controversies over particular precedents, most notably Roe v. Wade, (10) and by the direction a decision overruling these controversial precedents would likely take, given the current composition of the Supreme Court. My claim is that, abstracting away from these controversies and contingencies about the political values of the current Court, someone who believes in judicial restraint should favor a strong theory of precedent, at least in constitutional law.
My remarks are divided into three parts. I will first define what I mean by judicial restraint and set forth some reasons why it is a good thing. Then I will offer some thoughts as to why, in theory, a strong theory of precedent is more likely to lead to judicial restraint than a weak theory of precedent. Finally, I will offer some casual empirical evidence that I think supports the claimed relationship between the theory of precedent and judicial restraint.
II. THE VALUE OF JUDICIAL RESTRAINT
Judicial restraint is a contestable concept open to a variety of definitions. (11) It is important to define the term so as to avoid rendering the argument circular. Sometimes judicial restraint is defined to mean fidelity to the original meaning of the Constitution. (12) If this is what judicial restraint means, then obviously originalism--and only originalism--promotes judicial restraint. Other times judicial restraint is defined to mean fidelity to prior precedent. (13) If that is what judicial restraint means, then obviously stare decisis--and only stare decisis--promotes judicial restraint.
As I use the term, judicial restraint refers to a style of judging that produces the fewest surprises. Restrained judges render decisions that conform to what an experienced lawyer, familiar with the facts of the case and the relevant legal authorities, would counsel a client would be the most likely outcome. A restrained judge, in this sense, is not necessarily deferential to other political institutions. A restrained judge is simply a highly predictable judge, and this may include being predictably non-deferential to other institutions. For example, suppose a State were to enact a law punishing persons who spit on the American flag. Since the U.S. Supreme Court has consistently struck down flag desecration laws, (14) an experienced lawyer would predict that the flag-spitting law would also be invalidated. A restrained judge would reach the same result, even though this involves invalidating a democratically-enacted statute, and hence in this sense entails imposing the judicial will against the wishes of other political institutions. (15)
Defining judicial restraint in terms of predictability is not circular in terms of whether originalism or precedent-following is more likely to lead to restraint. Restraint in this …