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Originalism and Precedent
Michael Ramsey

Eric Posner thinks precedent is a serious problem for originalism.  Will Baude, at the post-merger Washington Post/Volokh Conspiracy, does not.  (As an aside, how great is it that the Post is now hosting scholarly discussions of originalism?)

Baude's points, which I agree with, are basically that (a) originalists have plausible ways to deal with precedent [see here by John McGinnis and Mike Rappaport], and (b) in any event precedent is a problem not uniquely for originalists, but for everyone who has a theory of constitutional adjudication that involves something more than precedent.

Here's a short version of my emerging thoughts about originalism and precedent.  (A longer version is sketched in The Supremacy Clause, Original Meaning and Modern Law).  Binding precedent can mean a range of things, from a narrow view that would not do much more than treat very similar cases alike to a broad view that would find some abstract principle in a case and reason from that to results in quite dissimilar cases.  As all lawyers know, the difficulty in arguing from precedent is deciding what a case stands for.  To say that originalism must accommodate precedent does not say what version of precedent originalism must accommodate.

My view is that the most originalism must accommodate is a narrow version of precedent (for openly non-originalist precedents, at least).  It's really the only binding rule of precedent that's possible anyway, because any argument based on a broader reading of a precedent will be met with the argument that the precedent should be read more narrowly.  Thus, an originalist judge might plausibly say, I will decide like cases alike, but I will not extend non-originalist cases beyond their facts and necessary rules.

To illustrate, here is an example from the Supremacy Clause article.  Let's say--as I believe to be true--that the idea of preemptive executive agreements is unambiguously contrary to the text's original meaning (because Article VI doesn't include executive agreements and the President's possession of the executive power and not the legislative power bars any claim that the President can unilaterally make something with the force of law).  But the Supreme Court in a series of cases -- United States v. Belmont, United States v. Pink, Dames & Moore v. Regan and American Insurance Association v. Garamendi -- has held the contrary.  An originalist of the type I am suggesting might hesitate to overrule such a line of cases (though they were decided on plainly non-originalist grounds).  But all these cases involved the same basic facts -- the President settling claims against foreign governments or foreign citizens.  We might conclude, then, that executive settlement agreements are constitutional and preemptive as a matter of non-originalist precedent.  But we need not extend that rule to give preemptive effect to other sorts of executive agreements (even though a broad reading of some of the Court's language might suggest that we should) and we would certainly not extend that principle to say that the President could preempt state law simply by announcing a policy not contained in an executive agreement.

As I point out in the article, this approach is roughly the one adopted by the Court, per Chief Justice Roberts, in Medellin v. Texas -- in which the President did claim such a preemptive power and the Court rejected it despite the implications of the executive agreement cases.  (It also resembles the one Larry Solum and Randy Barnett, among others, have outlined in connection with the Court's commerce clause cases, see here).

In many areas, this approach seems likely to accommodate originalism and precedent without doing too much damage to either.  The keys are that the types of cases that are important at one time become less important in another, and that a rule that blocks certain kinds of claims or government actions will divert claims and government actions into different channels.  For both reasons, so long as ill-founded precedents are read narrowly, originalism will retain its force in a broad run of cases.

Executive agreements are an example.  It does not do such broad damage to the Constitution's original meaning to say that the President can make preemptive settlement agreements, so long as, in other respects, the President's preemptive power remains governed by the original meaning.  Allowing the settlement agreements to imply that the President might be able to make all sorts of preemptive agreements and preemptive policies, in contrast, would take a broad area of presidential power away from original meaning.  So long as respect for precedent means the former and not the latter, I think it poses no fatal difficulties for originalism.

UPDATE:  David Bernstein has related thoughts here, highlighting a different problem for originalism.  Also at the Volokh/Post, Ilya Somin has different originalism-related thoughts: The Origins of Originalism (responding to the article by Jack Balkin noted here).