Academic journal article
By Merrill, Thomas W.
Constitutional Commentary , Vol. 22, No. 2
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. …