In my last post, I began the discussion of the way originalism can integrate precedent into constitutional law by arguing that original Constitution contemplated that justices apply precedent as a matter of common law. Some acceptance of precedent also makes sense. It would be wonderful if justices never made mistakes, but they do and it is not always possible to begin the world anew.
But originalism can also help us determine the harder question—what these common rules should be. These rules should require the justices to follow precedent only when the benefits outweigh the benefits of originalism. The original meaning of the Constitution is likely to be better as a general matter than precedent, because of the consensus process from which the former proceeds. That means precedent at the expense of original meaning should be followed only in particularized circumstances.
To summarize the advantages of the consensus process that created the original constitution and the amendments, a process that Mike Rappaport and I have discussed at length: Consensus for passing and amending the document is likely to make a good constitution for at least three reasons: First, it creates allegiances to fundamental law that a narrowly partisan document would not. Second by narrowing the range of plausible proposals, it creates the richer stream of deliberation that thinking about provisions that may endure for generations. Third, by being hard to amend, it puts voters under a thicker veil of ignorance about their long term position under the government it creates. Thus, they are more likely to consult the public interest than their personal interest, deciding for the long term such issues as what powers it is prudent to give to the President and what freedoms are needed to protect the citizenry.
A comparison of continental consensus that is at the heart of the amendment process shows why it is a better guide to the Constitution than non-originalist precedent created by justices. First, only a very small number of Justices generate norms through their decisions, but good constitutional lawmaking requires the broader participation of many. Second, the Supreme Court is drawn from a very narrow class of society. The narrowness begins with the fact they are all elite lawyers who live in the one company town of Washington. But today the narrowness is even more extreme. They have all attended one of two law schools, Harvard or Yale. Finally, constitutional lawmaking is supermajoritarian, while the Supreme Court rules by simple majority vote. (One must, however, concede that it is true that until Justice Scalia died, they did represent four of the five boroughs of New York!) In short, these several reasons suggest that doctrines fabricated by Supreme Court justices are not as likely to improve our Constitution as amendments.
And yet another problem with respecting precedents when they are wrong is that it interferes with the amendment process itself. We have historical evidence for this: as non-originalism became more powerful, the amendment process fell into disuse for the enactment of profound social change. This is not surprising. It is originalism that protects the amendment process. If judges can change the Constitution, most people will put their energy into trying to get the right judge appointed and creating a culture where it is thought proper for judges not to be constrained by originalism.
Thus, the amendment process will not be effective without originalism. But a constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent, making the Constitution ever more remote from its meaning, as enacted and amended. Because of these general benefits common law doctrines must recognize that precedent is second best and should be followed at the expense of original meaning only under rules that tell us when the costs of preferring precedent are less than flouting original meaning.
In my final post, I will describe some tentative rules for following precedent and respond to the argument that precedent has the advantage of promoting stability in law—an advantage that might be argued as generally applicable as the benefits of originalism.