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The Greater Originalist: Scalia, Thomas, and the Legitimacy of Precedent

Tim Sandefur recently had a post up claiming that Justice Thomas is the greater originalist, not Justice Scalia (as Lee Strang had claimed).  I don’t necessarily disagree with Sandefur — I think that both Scalia and Thomas have their virtues.  But I do strongly disagree with one aspect of Sandefur’s post where he says:

But if originalism means anything, it means that the Constitution has a meaning, and that it’s possible for courts to get that meaning wrong, and between those two—following the wrongly decided precedent or following the Constitution’s actual meaning—a judge must choose the latter. One can disagree with this approach, but it’s logically valid. On the contrary, I know of no evidence that the framers believed that precedents should be clung to even where it contradicts the Constitution’s meaning.

(emphasis added).  Well, I do know of some evidence that the Framers believed that precedents both would and should be followed as to the Constitution.  I discuss it in this article (co-authored with John McGinnis), where we show that precedent was a widely followed practice of long-standing within the Anglo-American legal system at the time of the Constitution, that several Framers anticipated it would be applied to the Constitution, that no Framer argued it would not be applied to the document, and that it was applied in the early years under the Constitution.  We also explain the textual basis for following precedent.

While I believe that certain precedent rules should be applied to the Constitution, that does not mean that all precedent approaches are equally legitimate.  Justice Scalia has been criticized for not adopting a consistent approach to following precedent and that may be true.  But the claim that all precedent is unconstitutional or illegitimate is, in my view, quite mistaken.

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A Jeffersonian Proposal for the Constitution

In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?