Precedent and Constitutional Construction

Last week I wrote a short post arguing that originalism is compatible with judicial precedent. That issue continues to be salient, in part due to a recent column by Cass Sunstein. Others have discussed Professor Sunstein's arguments, but I'd like to say a little more about how the relationship between originalism and precedent can work. I'll start by explaining the role of deference to precedent as a principle of "constitutional construction." In a follow-up post, I'll talk about the status of precedent for versions of originalism that reject the concept of constitutional construction.

Some originalists emphasize the difference between interpretation and construction. On that account, constitutional adjudication begins at the interpretation stage, which deals with the discernment of the Constitution's linguistic meaning. Yet for a variety of reasons -- including the lack of persuasive historical evidence on some matters and the Constitution's use of certain terms that are pretty vague -- interpretation will not always resolve a given constitutional dispute. In those situations, constitutional text and founding-era understandings will take some options off the table, but they will not yield a single result. Selecting among the remaining alternatives requires judges to engage in constitutional construction. In other words, the "construction zone" (as Larry Solum has aptly called it) begins where the Constitution's linguistic meaning leaves off.

Scholars such as Randy Barnett, Keith Whittington, and Jack Balkin have offered thoughtful proposals for how judges should handle the enterprise of constitutional construction. For example (and to oversimplify greatly), maybe judges who are operating in the construction zone should protect individual liberty, or defer to political majorities, or advance contemporary cultural and political values. I think another possibility is worth seriously considering: Maybe judges should respond to a lack of determinate original meaning by deferring (strongly) to judicial precedent. We might think of this as the "precedent principle" of constitutional construction.

The precedent principle reflects the belief that fidelity to precedent can generate significant benefits in terms of stability, predictability, constraint, and the impersonal operation of law. Further, selecting the precedent principle over competing approaches to constitutional construction implies that the benefits of fidelity to precedent tend to be more valuable than the benefits associated with, say, protecting individual liberty, deferring to political majorities, or advancing contemporary cultural norms. All of this is deeply controversial.

For now, I don't want to delve into the normative case for adopting the precedent principle as opposed to other principles of constitutional construction. I'm also going to put off discussing the possibility that something resembling the precedent principle may have a historical lineage through the concept of constitutional "liquidation" as described by scholars like Caleb Nelson. Instead, I just want to note how the precedent principle underscores the prospect of coherence between originalism and judicial precedent. You can be an ardent originalist and nevertheless conclude that the Constitution's text and history do not speak with sufficient clarity to resolve a particular dispute. And you can conclude that the best approach in such situations is to defer strongly to judicial precedent.

I haven't yet addressed cases in which the Constitution's original meaning is clear. In those cases, originalists (like all constitutional lawyers) need to make a choice between fidelity to the Constitution's original meaning and fidelity to its judicial gloss. As I stated briefly last week, and as I'll explain in a future post, I think it's perfectly coherent and plausible for many versions of originalism to abide by precedent even in some instances of conflict with the Constitution's original meaning. But before reaching that issue, I think it's useful to recognize how much room there is for originalism and precedent to work together through the mechanism of constitutional construction.