Can Originalism Fall Back on Precedent?

In my previous post, I suggested that originalism and judicial precedent can work together when deference to precedent is understood as a principle of "constitutional construction." If the Constitution's linguistic meaning isn't clear enough to resolve a dispute, precedent can serve as a second-order preference. And this second-order preference is likely to be particularly attractive to those who give primacy to the stability and impersonality of constitutional law.

Treating precedent as a second-order preference also helps originalism respond to criticisms that the methodology is too indeterminate to be effective. Even if one believes that the analysis of original meaning is frequently inadequate to resolve constitutional disputes, the inquiry invariably will narrow the range of plausible choices, and deference to precedent can take it from there. If a judge who is faced with constitutional uncertainty falls back on precedent, the problem of indeterminacy is much more manageable. Whatever insights arise from the inquiry into original meaning are supplemented by prior judicial pronouncements.

The broader point is that in evaluating originalist theories of interpretation, I think it's necessary to view those theories in full context. Just as one couldn't properly assess the merits of, say, common-law constitutionalism without acknowledging both the role of precedent and the role of moral judgments, one can't fully evaluate originalist theories without asking what happens when the Constitution's original meaning leaves multiple options on the table.

While various commentators have offered elegant defenses of the distinction between constitutional interpretation and constitutional construction, not all originalists are on board. For example, John McGinnis and Michael Rappaport have developed a thoughtful argument that when the Constitution's text and history are unclear, judges should invoke interpretive assumptions that existed at the time of ratification. In other words, judges shouldn't engage in constitutional construction. Instead, they should seek to apply the "original interpretive rules."

The debate over the legitimacy of constitutional construction is a fascinating one, and I don't intend to engage it here. What I'd like to emphasize is that even the anti-construction position leaves room for second-order stare decisis. As Professors McGinnis and Rappaport suggest, and as is developed in the work of scholars such as Caleb Nelson, there appears to have been a founding-era assumption that constitutional indeterminacy could be resolved by the creation of judicial precedents, which would subsequently be entitled to deference. On that reading, second-order stare decisis rises to the level of an original interpretive method. The implication would be that when the Constitution's text and history leave doubt as to the proper resolution of a dispute, it is permissible (at least sometimes) for judges to defer to precedent.

On balance, it seems to me that second-order stare decisis has much to recommend it. Deference to precedent helps to constrain judicial discretion in situations of constitutional uncertainty. It contributes to legal stability and continuity. It works as a principle of constitutional construction, and maybe as an original interpretive method. And it's entirely compatible with retaining a first-order commitment to the Constitution's original meaning.

That last point deserves a bit more explanation. If you are drawn to originalism by an overarching commitment to judicial constraint and the rule of law, there's no problem with adopting a second-order preference for precedent -- which is, after all, a mechanism that's designed to promote those very values. But what if you're drawn to originalism for other reasons? In particular, what if you think fidelity to original meaning is implicit in the notion of popular sovereignty? Such a belief might imply that when the Constitution's original meaning is uncertain, the proper judicial response is to defer to political majorities rather than judicial precedent. Only when the people have spoken through the Constitution, the argument goes, is the invalidation of political action consistent with popular sovereignty.

This is a serious and fair objection to second-order stare decisis as a fallback rule. It strikes me as perfectly plausible that if one seeks to maximize popular sovereignty, one might well conclude that judges should defer to democratic action absent some clear constitutional prohibition. Yet while this argument is plausible, I think it equally legitimate for an originalist to conclude that (a) popular sovereignty requires fidelity to the written Constitution as the people's expression of their sovereign prerogative, but (b) the legal system can maintain a core of popular sovereignty even if judges respond to constitutional uncertainty by deferring to precedent.

Now, some originalists will reject second-order stare decisis because they're more inclined to protect democratic action than doctrinal stability. That's certainly a reasonable position. But it's not the only position that is consistent with the belief that fidelity to the Constitution's original meaning is grounded in popular sovereignty. An originalist, even one who views popular sovereignty as fundamental, may nevertheless accept second-order stare decisis in situations of constitutional uncertainty.