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09/02/2020

Marc DeGirolami on Originalism and Precedent
Michael Ramsey

At the Law & Liberty Forum, Marc DeGirolami: Integrating Originalism and Stare Decisis.  From the introduction: 

This essay ... diagnoses the problem stare decisis poses for originalism and surveys recent doctrine and scholarship on the subject. It concludes that if they wish to integrate originalism and stare decisis, originalists will have to confront the value of legal stability promoted by stare decisis more squarely. They will need to appreciate and incorporate the virtue of legal endurance—and constitutional law’s abiding traditionalism—into a theory of originalist judging.

...

What I will claim is the gap within originalism depends on what Professor Gary Lawson once called the distinction between interpretation (what words mean) and adjudication (how judges should decide cases). As a theory of interpretation, originalism is the view that the text of the Constitution means what it meant to the relevant public adopting it. As a theory of adjudication, originalism holds that judges should therefore decide cases by applying the text in accordance with the original public meaning.

But there is no necessary connection between these theories. I can know what the words on a shopping list mean and have good reasons to buy all, some, or none of the groceries on it. Likewise, a judge can know the original public meaning of the constitutional text and have good reasons to decide a case in full, partial, or no accord with that meaning. True, there are also descriptive and normative theories of originalism’s legal authority and political legitimacy. But these, too, do not speak directly to how judges should decide cases, or to the nature of judicial excellence in constitutional adjudication. Just as one can have a theory of the meaning of shopping lists, one can also have a theory of the authoritative shopping-list maker, or of the list’s legitimacy, and yet still decide, for excellent reasons, to depart from the list when actually shopping. Some further argument is needed for judges to decide cases in accord with original meaning—some connection between a theory of constitutional meaning and a theory of constitutional judging.

And in conclusion (with lots of insightful analysis in between):

[S]tare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.

Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.