When Should Originalism Fall Back on Precedent?

In a previous post, I suggested that originalism might benefit from recognizing a fallback rule of deference to judicial precedent. The idea would be to preserve a first-order commitment to the Constitution's original meaning, but to acknowledge that when the original meaning cannot confidently be discerned, the best approach is to fall back on precedent. Underlying this argument is a dedication to judicial constraint, doctrinal stability, and a view of constitutional law as transcending the personalities of individual judges.

Among the (many) questions raised by this fallback rule is when it kicks in. That is, how should a judge determine when to fall back? I find this question to be fascinating and complex, and I'm continuing to work through it. With apologies to Peter King, here's what I think I think.

The basic issue, as Gary Lawson explained in Proving the Law (86 Nw. U. L. Rev. 859), is defining the standard of proof for legal propositions. We see endless debates over this issue in the administrative-law context as judges and scholars talk about whether a statute is "clear" for purposes of the Chevron inquiry. In the realm of constitutional interpretation, there's a similar question about where to set the bar for establishing the determinacy of the Constitution's original meaning.

I'll leave these big questions to far better minds than mine. I'd just like to suggest that regardless of where one sets the bar for constitutional determinacy, deference to precedent can work as a fallback rule when that bar is not met. Of course, the universe of cases in which precedent is relevant will be affected by the applicable standard for determinacy. But the basic operation of the fallback rule doesn't change.

I'd also note that, in my (tentative) view, it's possible to argue that the bar for determinacy ought to vary depending on whether a case is one of first impression. We can imagine (I can, anyway) an originalist judge who raises the bar for determinacy when the result would be to overrule a line of judicial precedents. There's even some basis for believing that this sort of approach may have had currency around the time of the founding. I suppose one might counter that it's not the bar for determinacy that's moving, but rather whether judges choose to implement the Constitution's determinate meaning. That strikes me as a fair point, and one whose implications are worth considering. But either way, the upshot would be that it takes more and better evidence to unsettle something than to settle it.