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Monday, February 03, 2014

Originalism and Precedent

I've been following the excellent discussion of originalism by Eric Posner and Will Baude, and I was particularly interested in Will's post about the relationship between originalism and judicial precedent. I think Will does a great job of making the case for originalism's compatibility with precedent. That said, I'd resist the notion that fidelity to precedent must come at the expense of "substantive theory."

The main reason for my skepticism is the existence of multiple versions of originalism with distinctive normative baselines. There are lots of different value judgments that might persuade someone to adopt the originalist methodology. And at least some of those value judgments also support precedent. So, for example, if you are generally sympathetic to originalism for reasons having to do with the rule of law, you might nevertheless support adherence to precedent (even erroneous precedent) when an overruling seems problematic in rule-of-law terms. To my mind, that type of theory isn't diluted by adherence to precedent. Rather, deference to precedent and deference to original meaning are just different methods of pursuing the theory's underlying aim.

I'd also add that I think the relationship between precedent and originalism has two important dimensions. The first is what happens when precedent conflicts with original meaning. The second is what happens when the original meaning is unclear. An originalist might believe that when a precedent conflicts with original meaning, the precedent must give way. Even so, that same originalist might conclude that when there is no such conflict, the best approach is to give strong deference to precedent in order to promote values such as stability and predictability. Of course, there are other ways that an originalist might plausibly respond to a lack of clear original meaning; deference to precedent is merely one option (albeit an option that I view as promising). But the broader point is that paying attention to situations where the Constitution's original meaning is unclear can help to define the place of precedent in contemporary originalism.

Posted by Randy J. Kozel on February 3, 2014 at 02:23 PM | Permalink

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Randy Kozel has done his own important work in this area. For anyone interested in originalism and precedent, I highly recommend Randy's recent article "Settled vs. Right: Constitutional Method and the Path of Precedent," 91 Tex. L. Rev. 1843 (2013).

Posted by: Kurt Lash | Feb 3, 2014 6:29:47 PM

Does " ... contemporary originalism" evolve because of contemporary needs/circumstances or come about from "discoveries of new history" challenging precedents? Or might there be rationalized originalism when original meaning/understanding may not be clear?

Posted by: Shag from Brookline | Feb 4, 2014 9:10:56 AM

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