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10/02/2020

Marc DeGirolami on Traditionalist Originalism
Michael Ramsey

At Law & Liberty Forum, Marc DeGirolami: Traditionalist Originalism (responding to comments on his earlier essay from Randy Barnett, Ilan Wurman and Jesse Merriam).  From the introduction:

I was surprised, in reading the probing responses to my essay, that the prospects for integrating originalism and stare decisis may be a little better than I had thought. I will focus in this reply on one strategy of integration cobbled together from Professor Wurman’s and Professor Barnett’s papers. I will then clarify some misapprehensions about my own views, and here my remarks will be directed primarily to Professor Merriam and Professor Barnett.

Traditionalist Originalism

Toward the end of my essay, I suggested that the magnetic pull of stare decisis is likely to be strongest when courts confront precedents of great age, endurance, and continuity. “Such precedents are,” I added, “likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning.” I pointed to evidence that this magnetic dynamic is at work in some of the justices’ recent treatments of stare decisis—including those justices most committed to originalism. I argued that when such enduring and concentrated precedents are also connected to the deep-rooted political and cultural practices of the American people, then the attraction of stare decisis approaches its zenith.

The interventions of Professors Wurman and Barnett suggest that there may be partial agreement on some of these points. Professor Wurman may agree with all of them. He points out, correctly in my view, that the stability promoted by stare decisis and reflected in the “artificial reason” of the law is exemplified in “a chain of decisions over time” reflecting enduring agreement about the true—or at least, a permissible—meaning of the Constitution. Professor Barnett writes that any attempt to integrate originalism and stare decisis must acknowledge the originalist “imperative” of bringing “the precedents of the Supreme Court gradually into alignment with the original meaning” of the Constitution. Judges, he says, should for epistemic reasons accept good-faith originalist precedents until “knowledgeable scholars” doing the latest originalist research weigh in.

Here I see things somewhat differently even from within an originalist framework. Originalists moved by Professor Barnett’s imperative would be well-advised to attend to the difference between, on the one hand, an ancient and enduring cluster of precedents reflecting practices extending back to the founding (and even before it) and, on the other, a comparatively recent, one-off, “unmoored” (as Justice Thomas put it) decision that runs counter to such enduring practices. This distinction is important for at least two reasons, one theoretical and the other practical. . . .

And from further on:

Professor Barnett is right, then, that integrating originalism and stare decisis will require accepting the “imperative” of gradual doctrinal alignment in accordance with original meaning. That will be stare decisis’ concession. But integration will require a concession from originalism, too—and something more than what Professor Barnett is offering at the moment. Originalists will need to acknowledge the traditionalism of constitutional law and that precedential age, endurance, and connection to common practice matter in constitutional law. They matter both for epistemic, interpretive reasons that ought to be of interest to originalists and for the stability that ought to be recognized by originalists and nonoriginalists alike as a legal virtue.

And finally:

[A] brief word on Professor Barnett’s remark that I may have “missed th[e] implication” that my traditionalist approach is akin to Professor David Strauss’s common-law constitutionalism. As it happens, I have not missed it. While there may be some surface similarities between our views, they are very different. Professor Strauss has argued for a “rational traditionalism” that validates the constitutionality of “relatively new practices” and “precedents” so long as they have achieved general acceptance and are justified on the basis of what Strauss takes to be an enlightened rationalism. My view is instead much closer to the original conception of the common law. At common law, precedents were evidence of the enduring traditions and customs of the people. That was their point. It is what made the law common. The modern view of the common law, as in Professor Strauss’s account, that judges have a kind of vanguardist, rationalist, lawmaking power was never a historical justification for stare decisis. It was the union of precedent and tradition over time that gave stare decisis its real power. Those who would incorporate a healthy understanding of stare decisis into constitutional law should follow this example.