In my last post, I explored whether Justice Scalia was an old or a new originalist, concluding that he was a new originalist in one way, but an old originalist in another way.  In this post, I want to look at another way that Scalia advocated an older type originalism.

One feature of newer originalist theories is that they have focused on how originalism fits into the law more generally.  The most significant example of this involves the theory of precedent.  It is well known that some originalists reject precedent, while others allow for it.  But the more fundamental theoretical question is why.

Justice Scalia accepted precedent.  In fact, he sometimes poked fun or criticized his co-originalist, Justice Thomas, by claiming that Thomas did not believe in precedent.  I am not sure that Scalia was correct, but it is clear that he accepted precedent.

But Scalia’s approach to precedent was unsatisfactory.  One problem was that he did not explain the circumstances when he would follow and when he would not follow precedent.  As a result, Scalia was open to the charge that he followed precedent based on his evaluation of the results.

But another problem with Scalia’s approach is that he did not describe what kind of law precedent is.  Put differently, why is it ok to follow precedent?  Is precedent based on the constitution, on statute, or common law?

Some of the newest originalist theories answer these questions.  Some people, like Lee Strang, argue that precedent is required by the judicial power.  Other people, like Gary Lawson, argue that the Constitution forbids precedent.  And others – like John Harrison and John McGinnis and I – argue that the Constitution allows for precedent as a matter of general common law and statute.  Under this latter view, the Constitution does not require or forbid precedent, but assumes that it will be established by the common law or by statute.

I am not aware that Scalia even thought about this question (although he may have).  But to my knowledge, he did not address it.  I am not finding fault here.  He had other fish to fry, coming earlier in the modern development of originalism.  But his approach was nonetheless incomplete.

Another issue is what kind of law governs the interpretation of the Constitution.  Here again I am not aware of Scalia addressing this issue.  (Scalia did address the type of law governing statutory interpretation a bit, claiming that the use of legislative history was unconstitutional, but I think he was mistaken here.)  But the most recent theories of originalism do address these questions, including those of Baude and Sachs and of McGinnis and Rappaport.  Since this is a complicated question, I will discuss it in a separate post in the future.