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Randy Kozel: Constitutional Method and the Path of Precedent
Michael Ramsey

Last week I attended an outstanding conference at Notre Dame Law School on "The Constitution and Unwritten Law."  It featured a number of papers that are not originalist in direct orientation but which have important implications for originalist analysis.  To the extent they are publicly avaliable, I'll post links to them this week with very brief comments.  This is the first -- Randy Kozel (Notre Dame Law School): Settled Versus Right: Constitutional Method and the Path of Precedent.  Here is the abstract form SSRN:

Flawed constitutional precedents give rise to a jurisprudential dilemma. On the one hand, there is the value of allowing the law to remain settled. On the other hand, there is the value of getting the law right. But while the virtues of constitutional settlement have received extensive scholarly and judicial attention, the value of interpretive accuracy has gone largely unexamined. Rectifying the deficiency depends on bridging the longstanding divide between constitutional precedent and interpretive method.

This Article provides a systematic analysis of the ways in which theories of precedent are — and are not — derivative of overarching methods of constitutional interpretation. It demonstrates that although certain consequences of deviating from precedent can be studied in isolation, the ultimate choice between overruling and retaining a flawed opinion requires the integration of a broader interpretive method. Moreover, because a single interpretive philosophy may be derived from multiple normative baselines, jurists and scholars must press beyond the threshold election of competing methodological schools to engage with their respective underpinnings. Whether one’s preferred interpretive approach is originalism, living constitutionalism, or otherwise, the value of getting the law right depends on methodological commitments and the normative premises that inform them.

Recognizing this interdependence provides a fresh perspective on longstanding debates over the constitutional dimensions of issues including free speech, abortion, criminal procedure, and affirmative action. It also exposes the dissonance that pervades the relationship between precedent and pluralistic approaches to constitutional adjudication — a dissonance that calls into question the very validity of pluralism as a mode of constitutional reasoning.

This paper has more to say specifically about originalism than the abstract suggests.  In particular, it has an insightful analysis of different justifications for originalism and why the different justifications imply different approaches to precedent (all of which sounded exactly right to me).