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09/10/2020

Ilan Wurman on Originalism and Precedent
Michael Ramsey

At Law & Liberty Forum, Ilan Wurman (Arizona State): Stare Decisis in an Originalist Theory of Law (responding to this essay by Marc DeGirolami).  From the introduction: 

There is much to admire in Marc DeGirolami’s excellent and thought-provoking essay on bridging the gap between originalism and stare decisis. I’m not sure I disagree with his analysis. But, I think, that analysis would benefit from three refinements or clarifications, with which we can better understand why the Founding generation expected judges to be both originalist and bound by precedent.

First, we ought to be clear that there are at least two different kinds of precedent. There are those precedents that resolve a question within the range of permissible textual interpretations. That was the kind of precedent to which Justice Clarence Thomas was referring in his opinion in Gamble; to which Alexander Hamilton was likely referring in his discussion in Federalist 78; and which originalists argue is consistent with Article III of the Constitution. One can be an originalist but also accept that the original meaning is sometimes open to competing plausible interpretations. What is a judge—or legislator, or executive—to do? When the question is first decided, it will not be decided on the basis of “precedent,” but rather on what these first deciders think is the best answer. Subsequent decisionmakers can then rely on that initial decision or disagree with it. At some point in time, however, future decisionmakers will consider the answer to the question “liquidated” or “settled” if enough earlier decisionmakers landed on a similar answer. This seems to have been James Madison’s view when he refused to veto the Second Bank of the United States, even though he had initially opposed the first bank on constitutional grounds.

This version of precedent explains why the Founders could be originalist while also accepting precedent. ...

So whence comes the need to bridge the gap between originalism and stare decisis in modern-day cases? The question arises only because at some point in time, the Supreme Court abandoned originalism, and prior originalist precedents, and came up with new law altogether. When precisely this happened is beside the point; it surely happened at different times for different doctrines. The point is, once the Supreme Court decided to change the law, the Supreme Court began to reaffirm its changes. These new legal decisions were now “precedents,” but they were unlike the older precedents in that they were outside the bounds of permissible textual interpretation.

Is this kind of new “precedent” the kind worth adhering to?

And in conclusion:

To summarize, any theory of precedent must recognize, as does Professor DeGirolami’s, that stare decisis is valuable “because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome.” But this requires a chain of decisions over time, and not a single Supreme Court decision; recognition that ultimately these decisions over time matter only because the numerous individuals at different times and places that have agreed are more likely to have agreed on the correct answer; and that the correct answer must be within the range of possible original meanings. Only by understanding these points can we see how it was possible for the Founders themselves to think that judges would be both originalist and bound by precedent.