Originalism Contributes to Legal Stability as Much as Precedent

As originalism gains favor in the courts and in the academy no question about this theory of interpretation is of more practical importance than the relation between original meaning and the large amount of non-originalist precedent. In my previous posts on precedent, I argued that because of the likely beneficence of the original understanding of constitutional provisions, the rules of precedent should create a presumption in favor of following the original meaning, defeasible only when there are some specific circumstances that favor precedent over originalism.

But some fine law professors, like Tom Merrill of Columbia Law School, argue in favor of a strong presumption of precedent on general grounds. The most important reason is that precedent contributes to legal stability, because past decisions have resolved specific disputes. Citizens will be better able to conform their conduct to the law by relying on them rather than by going back to the original meaning.

This argument confronts two major obstacles. First, it is too confident even under current conditions that a precedent-oriented law yields stability. Second, it assumes a world of precedent orientation. But in a world in which originalism predominates, scholars and lawyers will have extracted many more specific conclusions from the original meaning than they now do, making originalism a more stable source of law.

Precedent is often very difficult to apply consistently. Precedents come from different eras and different justices. The New Deal era had different values from the 1950s which had different values from the 1980s. Even the styles of jurisprudence were different. As a result, precedents from different periods in the Supreme Court do not form a coherent whole. They are inconsistent sometimes in results, but even more often in reasoning, which makes them difficult to apply to a new case.

But even if the precedents hail from the same era, Frank Easterbrook has shown that path dependency and shifting majorities prevent precedents from hanging together. Indeed, the point of his article was that criticizing the Court for having inconsistent precedent was a bankrupt academic exercise because inconsistency was inevitable. But that inevitability undermines the argument for stability.

And precedents very often depend on the particular facts of the case. Thus, it’s frequently difficult to generalize from them in a principled way. In contrast, the original meaning of the Constitution consists largely of rules and principles that are themselves generalizations.

Because of the problems with precedent, it is not surprising that a truly good legal craftsman like John Roberts and Elena Kagan resemble Olympic gold medalists in their ability to slalom through precedents and reach preferred albeit often opposite results.

To be sure, many lawyers today do not have much background in originalism, because until recently it is has not been a serious subject of inquiry at our law schools. Thus, in some areas there is no substantial scholarship that applies the original meaning in areas of law, creating concerns that lawyers will not be able to advise their clients on what the law is. But already that gap is being filled, and if the Supreme Court reoriented its precedent rules to prioritize originalism, it would further boost the demand for practical work on the original meaning of specific provisions.  In that new world, following originalism would be as least as stabilizing as following precedent, if not more so.

Reader Discussion

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on October 05, 2018 at 13:25:20 pm

Let me guess, originalism is good now because the conservatives will use it. If liberals use it later on, it will of course be bad.

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on October 05, 2018 at 16:35:30 pm

Guess what, percolating one, IF Liberals used originalism, THEY WOULD NOT BE LIBERALS.

No surprise here, but another bad guess on your part.

stop guessing whether or not your little regurgitative outpourings align with the "meme" of the day as such a goal is an inappropriate posture for one who would seek to make intelligent commentary.

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Guttenburgs Press and Brewery
on October 08, 2018 at 17:03:23 pm

The continuing use of the term “ liberal” to describe the political left is confusing and misleading. Historically, a “Liberal” is someone who honors and follows the principles of the Enlightenment. These include a focus on rational thought and scientific principles, intellectual curiosity and skepticism, and the freedom of the individual in thought and action.. Even if they had an education sufficient to understand this historical meaning of the word, I doubt many leftists today would claim themselves to be a liberal.

The new Left is increasingly using the term “ Progressive” to describe themselves. This seems a more accurate term as it emphasizes the Left’s focus on social and political change without suggesting it’s reliance on the values of traditional Liberalism. And, indeed, today’s Progrssives would chaff at the idea that the means used to achieve their aggressive pursuit of power should be restrained by any such old fashioned values. The Leftists’ inherent tendency to believe that the ( supposedly “good”) ends they seek justify discounting the effects of the means used to achieve these ends has reached a radical rebalancing in recent years, to the point that the ends essentially have become an all-consuming focus. The Progressive Left’s new mantra has become simply POWER by any means necessary.

I don’t fully agree with McGinnis’ analysis. I would give judicial precedents, however and by whomever they are decided, more of an independent importance than he suggests. For example, I think Roe v Wade was based upon a gross manipulation of the Constitution’s clear meaning and, relatedly, a fundamental abuse of the Court’s jurisprudential power in our democratic system. Nevertheless, I can think of several good jurisprudential reasons against overturning it as precedent.

Finally, like any other theory of Constitutional interpretation that has ever been devised, Originalism is not an all-purpose answer to Constitutional meaning. It does put the main focus where it should be: the reasonable meaning of the Constitution as written. But any wise Justice would recognize that most cases require more judicial evaluation and judgment than just reading the words. The real dispute between the Court’s liberals and conservatives is how much space they have in which to exercise such judgment. The liberals “Living Constitution” gives them broad reach to exercise their judgment, while Originalism dictates that such judgment should be restrained.

This explains the real political fight behind the Kavanaugh nomination. The founders intended the three branches of government to be independent of one another, but they also expected the Legislature would be predominant branch. The initiation of laws would come from the Legislature and the Executive would apply the laws and the Judiciary decide disputes over their meaning. Our increasingly divisive government over recent decades has resulted in the deliberative and compromising center of the government, the Legislature, becoming dysfunctional. One result of this has been the increasing scope and power of the Executive branch. Another has been the increasing resort to the courts to make social or economic decisions the Legislature is no longer functionally able to make.

The involvement of the Supreme Court dates back to the activism of the Warren Court. The so-called “liberal” majority on that Court showed itself amenable to serving as an alternative forum to the Legislature for deciding controversial public issues, hence Roe v Wade. As the functionality of the Legislature decreased over time, both parties made increasing resort to the courts. But the Democrats were more reliant on this because “liberal” justices gave themselves more Constitutional leeway to decide issues that could not be decided by legislation . For some years the liberal majority on the Supreme Court has been shrinking. With Justice Kennedy serving it was at a rough balance. With Kavanaugh now replacing Kennedy, the Democrats have finally lost their majority and, with it, the ability to use the Court as a means (a tool?) to achieve political ends. They have lost a major source of political power and they are incensed.

it is a sad observation that probably not one in a hundred - maybe one in a thousand - of those protesting against the Kavanaugh nomination has any knowledge or appreciation of what is said above. In fact, most of the politicians in Washington have no appreciation of the democratic principles at stake in this dispute. For them, it is simply a matter of partisan power. If this doesn’t change, the U.S. will not be the major democracy in the world for much longer.

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