Originalist Rules of Precedent

In my last two posts on precedent, I argued for two propositions. First, the Constitution contemplates precedent as a legal consideration in some circumstances and determines the appropriate circumstances through common law doctrines. Second, these common law doctrines should be informed by the great and general value of following the original meaning of the Constitution. As a result, these common law doctrines should 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 discarding the original meaning.

I don’t have space to articulate all these rules in a single post. But here are three that Mike Rappaport and I have considered. First, precedent should be preferred when we are confident that a constitutional amendment would have been passed had the case gone the other way. That rule would certainly protect the holdings of the Legal Tender cases and probably Griswold v. Connecticut, even assuming they were wrongly decided. But most precedents do not fall into this category. For instance, it is not at all likely that the exclusionary rule or Miranda would muster enough support to become entrenched by a constitutional amendment.

Second, the Court should follow precedent when there are truly enormous costs of discarding it. Thus, even if Article I did not permit delegations to agencies, it would destabilize society to declare such delegations unconstitutional now and get rid of all the regulatory agencies that rely on delegation. In contrast, this rule would not insulate those decisions that permit agencies to be independent of the President, assuming that original meaning of the Constitution gives the President the authority to fire them at will. No one would much notice except for Washington bureaucrats if tomorrow agency heads became so dispensable. The costs have to be truly great to justify sticking with non-originalist precedent.

Third, if the Supreme Court had fashioned a precedent through good faith efforts to find the original meaning and then reaffirmed it through subsequent re-investigations, there would be no reason to believe that another Court would do better in discovering the original meaning even if it disagreed with the prior precedent. Therefore the presence of any reliance interests in adhering to the holding set out by the precedent would militate in favor of stare decisis. In contrast, precedents where the Court did not attempt to base its holding on a good faith analysis of the original meaning would not be protected by this rule. As a result, much of the Warren Court criminal law jurisprudence would be vulnerable.

Importantly, all these doctrines would not begin with the presumption in favor of following precedent that the Court set forth in Planned Parenthood v. Casey. Under the Casey view, precedent is the presumptive rule defeasible only by specific factors. In our view, following original meaning should be the general presumption defeasible only by specific rules.

In my next and final post in this series, I will refute some arguments for stronger precedent rules.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 28, 2018 at 07:43:33 am

As to the first rule, it is an interesting rule, but at best it can only reach the holding of the case and not the reasoning. A later opinion might overturn the opinion in that case, but establish a similar rule on different grounds. Although, given how hard it is to pass a constitutional amendment, even things with broad support like Griswold may not have had enough support for a constitutional amendment.

It seems to me if we followed your second rule that we would still have Plessy v. Ferguson, and that is totally unacceptable to me. Sometimes it is worth destabilizing the legal status quo if that returns us to the original meaning and improves our legal rules to benefit the country in the long term.

As to the "good faith" argument, to a certain extent I agree with you, but the problem is it is very hard to show what is "good faith" and what isn't. Instead, I think if there are really good originalist arguments on both sides (an objective test), that mitigates whether I think the Court should overturn precedent.

read full comment
Image of Devin Watkins
Devin Watkins
on September 28, 2018 at 17:29:38 pm


Are we to expect that our legal elites, in the first instance unable to reach a correct, constitutionally sound decision, may in the second instance (i.e. the review of precedent) be able to read the minds AND the intent of 300MILLION CITIZENS and declare that "Yep, they would have passed a constitutional amendment."
This is SHEER FANTASY and an ARROGANCE regarding one's own intellectual powers that is bleepin' breathtaking.
May I ask. "What other amendments have you divined that lurk in the background IF ONLY....

Devin is correct re: "measuring the effect" and Plessy v Ferguson.
Recall, if you will the characterization the Court made as to how to manage the "effects" that McGinnis supposes to assess:
Was it not to be implemented with "All deliberate Speed"? Why if such an *instruction* were sufficient for Brown, is it not sufficient for a case overturning the APA? It would be up to the Legislative Branch to determine both the speed and the "deliberateness" of the return to Constitutional government.
We need not shy away from our constitutional duty because it is hard or it may upset some (indeed, millions of bureaucrats).

And how is McGinnis "good" judge to determine "good faith". My quarterback enters the huddle with all good faith and throws an interception. Gee, that worked out fine, didn't it? Yes, there are some clear instances of judges acting without good faith, but HOW IN THE WORLD DO YOU DETERMINE THAT? and secondly, SO WHAT. An improper ruling is still improper whether all the angels in heaven sing the praises of a particular jurist.

What in the world is happening to McGinnis. Yes, I know that many of the *living* types assail originalist theory because of a perceived (alleged?) difficulty originalism has with stare decisis - BUT John, you can do better than to simply appropriate the arguments, the seers vision assumed / presumed to be possessed by the living constitutionalists. Is this not how we were bequeathed the "mystery of life" and its' penumbras and emanations.

McGinnis - you are both better and smarter than this!

read full comment
Image of gabe
on September 29, 2018 at 13:13:11 pm

This is the best McGinnis can do if he is determined to preserve stare decisis in constitutional matters.

What McGinnis never discusses is that stare decisis applied to constitutional issues is fundamentally inconsistent with the plain language of Art. V because only the people acting through their elected representatives can change the meaning of the text of the Constitution and that only by a 2/3 majority. Judges and their "experts" on law, history, semantics and linguistics have no role to play in such matters.

Besides, the events of the last week clearly show that there is literally nothing left of the reputation and institutional authority of the Senate and Supreme Court and the House has been a dead letter since it abandoned its role in declaring war in 1965 and passing annual budgets in regular order in 2008.

We do appear to be crossing the threshold into a political state of nature.

read full comment
Image of EK
on September 29, 2018 at 13:28:20 pm

In L1 I was told: "good faith" = "arguably honest motives" + "empty head."

read full comment
Image of EK
on October 05, 2018 at 05:46:09 am

[…] 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 […]

read full comment
Image of Originalism Contributes to Legal Stability as Much as Precedent
Originalism Contributes to Legal Stability as Much as Precedent

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.