Originalism and Precedent
McGinnis, John O., Rappaport, Michael B., Harvard Journal of Law & Public Policy
Although originalism has grown in popularity in recent years, the theory continues to face major criticisms. One such criticism is that originalism cannot accommodate precedent. This criticism takes two forms. First, some critics, as well as some advocates of originalism, argue that originalism is inconsistent with precedent and therefore originalist judges must overturn all precedents that conflict with the Constitution's original meaning. (1)
If these scholars are correct, however, originalism becomes far less attractive because it would obligate judges to make a number of radical and unpopular decisions. For example, depending on one's reading of the Constitution's original meaning, an originalist might be required to declare paper money unconstitutional or to reverse Brown v. Board of Education. (2)
Second, even if originalists do follow precedent on pragmatic grounds, critics argue that this approach undermines originalism and its distinctive virtues. If judges can simply decide which precedents they want to follow, then originalism is little better than an unprincipled nonoriginalism.
This short Essay, which is based on a longer article, (3) responds to each of these precedent-based challenges to originalism. First, we argue that there is no fundamental conflict between originalism and precedent. The original meaning of the Constitution allows for precedent because it treats precedent as a matter of federal common law that Congress can override by statute. (4)
Second, we argue that one can articulate a principled doctrine of precedent that is compatible with originalism and that preserves the most important benefits of both originalism and precedent. Our normative approach is consequentialist. A normatively desirable doctrine of precedent would follow precedent when the benefits of doing so are greater than the benefits of returning to the original meaning and would follow the original meaning in the reverse situation. (5)
Turning to this task, we begin by identifying the principal benefits of following the original meaning and the principal benefits of following precedent. (6) We then recommend a few precedent rules. (7) Our theory recommends an intermediate approach to precedent, sometimes following it and sometimes not. Although this theory is less respectful of precedent than the Supreme Court's existing approach, (8) it would avoid the problems created by the wholesale rejection of nonoriginalist precedents while leaving a significant role for originalism in constitutional interpretation.
THE COMPATIBILITY OF ORIGINALISM AND PRECEDENT
We start by explaining why originalism and precedent are compatible. Although many originalists believe that precedent is inconsistent with originalism, they base their claim on political or jurisprudential theory. (9) In their view, originalism as a matter of theory only permits changes in constitutional meaning to occur through amendments. This view, however, is problematic. Whether precedent is consistent with originalism depends on the original meaning of the Constitution, not political theory. If the Constitution clearly said judges should follow precedents, then everyone would have to admit that originalism requires adherence to precedent. Thus, the question of the compatibility of originalism and precedent turns on what the Constitution itself says about precedent.
Some originalists have argued that the original meaning of the Constitution actually prohibits judges from following precedent. (10) The Supremacy Clause says that the Constitution, not judicial precedent, is "the supreme law of the land." (11) Thus, when a judge is confronted with a precedent that erroneously interprets the Constitution, the Constitution itself commands the judge to follow the Constitution, not the precedent. Hence, following precedent is unconstitutional.
There are, however, problems with this argument. First, it is inconsistent with the history of precedent in Anglo-American law. …