Is Precedent Consistent with Originalism? A Response to Some Comments

My post on The Greater Originalist, which argued that following precedent was consistent with originalism, prompted some comments by Andrew Hyman and Tim Sandefur.  Here I will briefly articulate my theory of constitutional precedent (developed with John McGinnis) and then respond to their questions.

My view of precedent is as follows.  First, I argue that the Constitution itself allows for precedent.  In particular, the original meaning of the Constitution contemplates common law precedent rules that are binding on judges.  But the Constitution also allows Congress to enact precedent rules that would displace the common law rules.

Second, I argue on policy grounds that the best precedent doctrine would be an intermediate one that follows the original meaning except in limited circumstances when the benefits of precedent outweighs the benefits of following the original meaning.  This doctrine, however, should employ rules to identify the situations when precedent should be followed, and should not allow judges to employ a balancing test to determine whether to employ precedent.

One of the precedent rules that I defend would have judges follow precedents that have the same degree of support that a constitutional amendment would require.  In that situation, the precedent would have many of the characteristics of a constitutional provision.  Of course, a constitutional amendment would be superior, because it would have been actually enacted.  But overturning precedents that have such strong support also has serious costs.

Let me now respond to Andrew and Tim.  Andrew imagines a problematic precedent, such as Griswold’s conclusion (that contraception between married adults is constitutionally protected) being derived from the Appointments Clause.  I agree that this is silly reasoning, but of course such reasoning is unlikely to come from the Supreme Court.  It is also unlikely that such a case would be widely embraced by the nation.  But if such a case were widely embraced, as I think the actual Griswald case is, then it should be followed.  Andrew worries that the Supreme might “extract . .  a fake overwhelming national consensus from whatever tea leaves they examine” and therefore “effectively amend the Constitution.”  But the abuse of standards is always possible.  The Supreme Court could “extract a fake” interpretation of the original meaning and effectively amend the Constitution as well.  The question is whether the standard is desirable, not whether it can be abused.

Tim argues that the Constitution represents the sovereignty of the people and it confers only a limited delegation to the Supreme Court.  Therefore, there can no obligation of the Supreme Court to follow a precedent that is contrary to the Constitution enacted by the people.  But Tim’s argument assumes to be true what I argue is false: that the Constitution does not allow binding precedent.  If my interpretation of the original meaning is correct, and I think it is, then the people have authorized the Supreme Court to apply precedent rules that allow precedents that conflict with the original meaning.