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04/20/2018

Lawrence Solum: Originalist Theory and Precedent
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Originalist Theory and Precedent on SSRN.  Here is the abstract:

This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court.

The Article advances two central claims. First, precedent has a role to play in the transition to originalism. Because an originalist "big bang" is not feasible, originalists should embrace a transitional role for precedent on the road from the status quo to a constitutional jurisprudence that is fully consistent with the original meaning of the constitutional text. Second, precedent has a role to play within originalist jurisprudence with respect to questions where the original meaning is not clear: in such cases, an originalist jurisprudence could incorporate a principle that the settled meaning of the clause should prevail until there is substantial consensus that another meaning is correct.

In addition, the article discusses the question whether the doctrine of stare decisis is consistent with the original public meaning of the constitutional text. Rather than offering conclusions, the point of this discussion is to outline methods and principals that should guide the originalist inquiry.

At Legal Theory Blog, Professor Solum comments:

I look forward to discussing this paper at the conference on Randy Kozel's important book, Settled versus Right (click on the title for link to the Amazon.com page) to be held on Friday and Saturday at the University of Richmond.  Thanks to Kurt Lash at Richmond and Jason Mazzone at the University of Illinois for organizing this event.

Comments welcome!

I've thought a little about originalism and precedent, but I've only gotten to what seems like the first step: originalists should not extend non-originalist precedent beyond its immediate implications.  For a sketch of how that might work in the area of preemption and federal common law, see here: The Supremacy Clause, Original Meaning, and Modern Law.