« Robert Gomulkiewicz: The Supreme Court's Chief Justice of Intellectual Property Law
Michael Ramsey
| Main | William Haun & Daniel Chen on Freedom of Assembly
Michael Ramsey »

04/26/2021

More on Michael Dorf’s “Originalism’s Discontinuity Problem”
David Weisberg

With regard to Professor Dorf’s post “Originalism’s Discontinuity Problem,” I agree with Professor Ramsey that discontinuity is no particular problem for originalism.  (Nor is it a particular problem for constitutional textualism.)   But I would add one additional point.  Professor Dorf writes:

Justice Scalia…wrote…that stare decisis is an exception to originalism and textualism, adding…that it is likewise an exception to every theory of interpretation. He was right about originalism but that addition about other theories and methods is wrong. Stare decisis is not an exception to modes of statutory and constitutional interpretation that place precedent at their core—like Dworkin's law as integrity or Strauss's common law constitutionalism. If you build your theory based on precedent, then you will still sometimes have line drawing problems, but you won't have whole bodies of inconsistent law directly adjacent to one another[.]

I submit that, if precedent is made the “core” of constitutional interpretation—if a theory of constitutional interpretation is “buil[t]” and “based” on precedent—courts will be stuck with the consequences of previous legal decisions that, viewed from a more contemporary perspective, might deserve to be overturned.  If, e.g., the US Supreme Court always had a majority of justices who considered precedent to be the “core” of proper constitutional interpretation, the de jure racial segregation approved in Plessy vFerguson would still be constitutional, Lochner vNew York would to this day invalidate statutes that “interfere” with the liberty of person and right of free contract, and, under Bowers vHardwick, States could currently criminalize consensual sodomy.  Unswerving fidelity to precedent precludes the correction of results that, over time, might come to be seen as blatantly erroneous.