Originalism and An Intermediate Theory of Precedent

Precedent poses a problem for originalism, because much of Supreme Court jurisprudence is nonoriginalist.  Originalists have had two ways of treating such precedent.  The first is to dismiss nonoriginalist precedent as inconsistent with the Constitution. Under this view, the Constitution must be interpreted according to its original meaning because nothing in the document permits precedent to trump the original meaning. While precedent might be consulted for any evidence it provides about the original meaning, interpreters should not give any independent weight to precedent.

The problem with this view is that, while it appears to retain the purity of originalism, it renders it a wholly impractical jurisprudence.  Some core contemporary practices of government are founded on nonoriginalist decisions.  To overrule these decisions would plunge the nation into chaos.  Moreover, no Supreme Court has ever suggested that precedents should be given no weight in its decision making.

Alternatively, some originalists advocate following nonoriginalist precedent in certain circumstances.  Antonin Scalia, for instance, has sometimes followed constitutional precedent that he appears to believe is nonoriginalist. The difficulty with this approach is that, without further explanation, it appears unprincipled and ad hoc.  Moreover, if some precedent can be reconciled with originalism, what are the rules that integrate originalism and precedent and how do they flow from originalism?

Our theory shows how originalism can be reconciled with precedent in a principled and beneficial way. The claim that originalism is incompatible with precedent is wrong, because the Constitution’s original meaning itself contemplates precedent.  The Constitution largely treats precedent as a matter of common law that is revisable by congressional statute.  Our book collects substantial evidence that the Framers assumed that precedent would apply in the constitutional context as well as in other legal contexts.  Because precedent is a common law matter, the courts in the first instance and Congress ultimately have significant discretion over what precedent rules should be adopted.

The consequentialist nature of our theory of originalism then permits us to develop a normatively optimal approach to precedent under originalism.  A balance must be struck between the benefits of following the original meaning of desirable provisions and the benefits of following precedent, such as predictability, judicial constraint, and protection of reliance interests.  Examining these relative benefits and the circumstances when they are most valuable can be used to generate a precedent doctrine that consists primarily of rules rather than one dominated by judicial discretion.

Our normative theory of precedent thus is intermediate between originalists who reject all precedent, and the current Supreme Court, which claims to invoke a strong presumption in favor of precedent. We believe, in contrast, that given the benefits of the Constitution’s original meaning, there must be strong countervailing benefits to justify following nonoriginalist precedent.

Nevertheless, we do identify two circumstances where following precedent has such great benefits (and there may be more).  First, precedent should be followed when it is entrenched – that is, when the precedent now enjoys such strong support that it is comparable to that necessary to pass a constitutional amendment.

Second, precedent should be followed when overturning it would cause enormous costs.  Thus, precedents holding that Social Security or paper money are constitutional, even if they turned out to be mistaken, should not be overturned.  Similarly, fully returning to the original meaning of the Commerce Clause, if it meant that a vast number of laws were rendered unconstitutional, would also be inappropriate.  Of course, it is important to define what counts as an enormous cost, but we provide some guidance in the book.

Thus, our theory of precedent does not necessitate the elimination of nonoriginalist precedents around which our society is based.  But it does permit the Constitution’s original meaning to apply when precedents do not have deep roots in the legal soil.  It thereby allows today’s polity to reap the benefits of past consensus decisions and not remain permanently stuck with the ill-considered decisions of some particular set of justices.