How Originalism Integrates Precedent, Part I

In my last three posts, I have discussed how to reconcile the modalities method of interpretation with originalism. To summarize: constitutional theorists, like Professor Pamela Karlan, who argue for modalities, believe that the Constitution should be interpreted according to many factors in addition to or even instead of original meaning. My posts have suggested nevertheless that many of these factors, like text, structure, and even consequences, can be comprehended by originalism, particularly its original methods version. Thus, for instance, text and structure contribute to the original meaning.

But, unlike the modalities approach, original methods originalism can provide a disciplined framework telling us how these factors contribute, making the interpretive process coherent. For example, the benefits or costs of consequences might be taken into account only as determined by the purposes or values derived from the enactment at issue and then only when the text as illuminated by its structure and historical meaning remains unclear.

Another modality defended by Professor Karlan is precedent. However, this factor is fundamentally different from those previously discussed, because precedent does not directly seek evidence as of the meaning of a provision at the time it was passed. It focuses not on a consideration of the meaning of a text, but on a judicial decision in applying that text. Moreover, it is clear that the Supreme Court and lawyers speak of precedent differently from factors contributing directly to meaning. For instance, justices never claim to overrule the text or structure of the Constitution. Only a constitutional amendment can accomplish that feat. But justices can and have acknowledged overruling precedent.

Even if precedent does not operate to directly fix the meaning of the Constitution, originalism still helps integrate its application with others factors that guide interpretation. First, it is a question of the original meaning whether following precedent at the expense of original meaning is permissible.  Mike Rappaport and I have argued previously that original Constitution contemplated precedent. We show that judges had an obligation to follow at least a weak version of precedent, because the concept of judicial power in Article III so requires: A judge who did not even consider previous decisions would not be acting like a judge. Beyond that limited constraint, however,  precedent was a matter of common law for the judiciary to reformulate and the legislature to revise.

But originalism is helpful even beyond bestowing legitimacy on the consideration of precedent, because understanding its virtues helps formulate the best precedent rules. We can assess when to follow precedent as opposed to following the original meaning only by comparing the benefits of original meaning to the benefits of following precedent. Then we can propose rules that optimize the benefits and minimize the costs of following precedent. Without this kind of comparison, our rules will not integrate the practice of following precedent with the practice of following the meaning of the Constitution and thus not with the other modalities relevant to its meaning.

In the next post, I will consider how this integration should take place.

Reader Discussion

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on September 18, 2018 at 10:34:37 am

" I will consider how this integration should take place."

Hope so as some commentary would appear to go against originalism, i.e., "We can assess when to follow precedent as opposed to following the original meaning only by comparing the benefits of original meaning to the benefits of following precedent. Then we can propose rules that optimize the benefits and minimize the costs of following precedent."

Ought not we make judicial determinations irrespective of benefit *outcomes*

Perhaps, it is just the phrasing that causes one to infer that we may, under originalism, "weigh" benefits over the text / meaning.

Look forward to further explanation.

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on September 19, 2018 at 09:10:51 am

Well, precedent that changes word or phrase meaning is undeniably invalid, as opposed those that affect application or construction.

So, if a judge at some point recognizes the meaning of arms as originally mean, but builds a reasonable construction that this omits indiscriminate weapons, such as automated weapons, rocket launchers or grenades that aren't typically used for "defense of the body" or "to strike another", and are simply beyond what is necessary for defense of the country or the individual, that could be considered to be a reasonable precedent for the times and technology. However, if the US should come under attack in a persistent war with terrorists or drug cartels, it may be that this precedent is expanded to include more advanced arms due to the changing nature of self defense and the threats against individuals.

I find it interesting that Living Constitutionalists have waited until just recently to try to construct a "system" around "feelz" and now call it "modalities". This has all the failure points and inconsistencies of original intent/scope/application originalism. Except it is more of a disguise for "making it up as we go along" rather than any kind of defined methodology. They are trying to create a façade for it to give it the air of legitimacy. The entire idea that any plaintiff must prove beyond a reasonable doubt that a democratically enacted law, with historical precedent, is unConstitutional is not supportable, especially considering Brown, Loving, Obergefell would have failed by this standard. Segall put it debate testing mode the other day, I think and Chris Green was a bit unprepared for it. The attack point has to be the double standard and inconsistency of it and how it works against itself. But at least they are making the attempt.

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John Ashman
on September 19, 2018 at 09:15:53 am

Yeah, that is just BS living constitutionalism right there, the very same thing the left does.

Originalists need to stop apologizing for or shying away from the possible side effects of ruling for the Constitution. We have an amendment process that can fix *any* adverse effects or sadness from a law or agency being ruled unConstitutional. How hard would it be to get an amendment for NASA or National Parks?

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John Ashman
on September 19, 2018 at 16:27:29 pm

Absotively re: "apologizing".
Dang it, the Law is the Law and COTUS is COTUS, for better or worse.
That, is after all why we have an Art V!

I agreed with McGinnis (and Rappaport) when they argued, fairly persuasively that COTUS does indeed lead to good consequences BY VIRTUE of its text / original meaning.

To then go off on a fools errand and attempt to justify or FIND good consequences to support a decision or to be one of the principal determinants of that decision is an indication of doubt as to McGinnis earlier theories and explications of COTUS.

What gives, John? Are we slipping in some "living" into our original COTUS?

Very disappointing!

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on September 21, 2018 at 05:47:11 am

[…] my last post, I began the discussion of the way originalism can integrate precedent into constitutional law by […]

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How Originalism Integrates Precedent, Part 2
on September 21, 2018 at 11:35:03 am

Some people would say that enslaving people into a retirement Ponzi scheme is massively beneficial, even though it puts 6.5 million people into poverty at the time when they are trying to build and save for a better future life. These are value judgment that simply allow judges to do as they wish.

There is a difference between deciding between two possible meanings and overriding the meaning because doing so seems more "beneficial".

"It is a rule, where expressions are susceptible of two meanings, to recur to other explanations. Good faith is in favor of this recurrence." --Thomas Jefferson to William Short, 1791. ME 8:186

"Whenever the words of a law will bear two meanings, one of which will give effect to the law, and the other will defeat it, the former must be supposed to have been intended by the Legislature, because they could not intend that meaning, which would defeat their intention, in passing that law; and in a statute, as in a will, the intention of the party is to be sought after." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:110

"It was understood to be a rule of law that where the words of a statute admit of two constructions, the one just and the other unjust, the former is to be given them." --Thomas Jefferson to Isaac McPherson, 1813. ME 13:326

"When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless." --Thomas Jefferson to Wilson Nicholas, 1803. ME 10:418

"Where a phrase is susceptible of two meanings, we ought certainly to adopt that which will bring upon us the fewest inconveniences." --Thomas Jefferson: Opinion on Apportionment Bill, 1792. ME 3:208

"The general rule [is] that an instrument is to be so construed as to reconcile and give meaning and effect to all its parts." --Thomas Jefferson to -----, 1816. ME 14:445

"In every event, I would rather construe so narrowly as to oblige the nation to amend, and thus declare what powers they would agree to yield, than too broadly, and indeed, so broadly as to enable the executive and the Senate to do things which the Constitution forbids." --Thomas Jefferson: The Anas, 1793. ME 1:408

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John Ashman
on September 28, 2018 at 05:52:13 am

[…] my last two posts on precedent, I argued for two propositions. First, the Constitution contemplates precedent […]

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Originalist Rules of Precedent
on January 22, 2020 at 17:38:28 pm

Precedents are nothing but a judicial attempt to circumvent Article V of our Constitution. The Founders foresaw a need might arise to amend the provisions of our Constitution and THUS included in the Constitution a constitutionally approved means to do so. Precedents not in accord with the provisions of our Constitution merely provide the courts with a way of justifying decisions which exceed their original intent. THIS is the argument of the advocates of a "living Constitution" able to meet the needs of current society without following the dictates of Article V, an admittedly time consuming process. But the Founders intentionally made it a difficult process, for any change in the provisions of our constitution affect ALL the people and warrant the discussion, debate and the ratification of our legislatures and not the mere opinion of any singular judge or Supreme Court. Our Constitution is truly a "living constitution" because of Article V which authorizes and dictates the means for its Amendment WHEN we the people deem it necessary.

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Richard Pawlak

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