Trumping Precedent with Original Meaning: Not as Radical as It Sounds
Barnett, Randy E., Constitutional Commentary
Originalism was thought to be buried in the 1980s with critiques such as those by Paul Brest (1) and Jeff Powell. (2) Brest charged that originalism was unworkable, while Powell maintained that originalism was inconsistent with the original intentions of the Founders. (3) Others raised the moral challenge of why we should be ruled by the "dead hand" of the past. Yet an originalist approach to interpretation has--like a phoenix from the ashes or Dracula from his grave, depending on your point of view--survived into the Twenty-first Century as an intellectual contender. Indeed, it has thrived like no other approach to interpretation. (4)
This remarkable survival is due, in part, to originalism itself having morphed in response to these critiques from its previous preoccupation with the original intentions of the framers to an emphasis on the original public meaning of the text at the time of its enactment. (5) Determining the public meaning of the words of the Constitution is much more practical than discovering the myriad subjective intentions of those who wrote or ratified it. That there is a unique original public meaning is a far more plausible claim than that one can discern a unique original intention from the potentially conflicting intentions of various framers. And it turns out that the Founders themselves practiced a form of original meaning originalism. (6)
Finally, an original public meaning approach can be grounded in the need to impose written constraints on all branches of government. According to this normative defense, we should adhere to the original meaning of the document, not because long dead men have any authority over we the living. We should do so because we, right here and right now, ought to consider a written constitution among the structural features of our Constitution, and this feature would be undermined if any of the branches of government, either alone or together, could alter and weaken the written limitations which have been imposed upon them.
I. THE INCOMPATIBILITY OF ORIGINALISM AND PRECEDENT
With these familiar criticisms largely neutralized, what intellectual challenge to originalism is left? Today, the biggest single challenge facing originalists is reconciling originalism with precedent. (7) The problem can be summarized by the following syllogism:
(1) Originalism amounts to the claim that the meaning of the Constitution should remain the same until it is properly changed.
(2) None of the three branches of government on whom the written Constitution imposes limits should be able to alter these limitations, either alone or in combination, without properly amending the Constitution in writing.
(3) For this reason, the Supreme Court cannot change the Constitution which it is sworn to uphold and enforce.
(4) Were the Court mistakenly to decide a case that adopts an interpretation that contradicts the original meaning of the text, and this mistake was entrenched by the doctrine of precedent, then the Supreme Court's interpretation of the text would trump its original meaning.
(5) In this manner, the doctrine of precedent is inconsistent with originalism.
Two possible responses to this syllogism are obvious. The first is to treat the syllogism as a reductio ad absurdum and to reject originalism. The second is to embrace the conclusion of the syllogism as correct and to reject precedent. There are difficulties with each of these options.
The problem with rejecting originalism goes to the normative arguments on its behalf. Accepting that judicial precedent can trump original meaning puts judges above the Constitution they are supposed to be following, not making. If precedent trumps original meaning, then the Constitution would truly be what the Supreme Court says it is, rather than the Supreme Court itself being bound to adhere to the Constitution. In sum, if the normative case for originalism is compelling, then it provides a normative argument for rejecting the doctrine of precedent, where precedent conflicts with original meaning. …