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John McGinnis and Michael Rappaport: An Originalist Approach to Prospective Overruling
Mike Rappaport

John McGinnis (Northwestern) and Michael Rappaport (USD) have posted An Originalist Approach to Prospective Overruling (Notre Dame Law Review 2023) on SSRN.  Here is the abstract: 

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would employ a rule based doctrine for gradually returning our constitutional law to the original meaning without upsetting the reliance interests that stare decisis rightly protects.

While originalists, like Justice Antonin Scalia, have been extremely critical of the prospective overruling that the Warren Court used to implement its constitutional revolution, we here defend an approach to prospective overruling that would avoid these originalist criticisms. We show that prospective overruling is a legitimate form of the common law of precedent and thus encompassed by the judicial power. We also show that prospective overruling is not dicta that runs afoul of the Constitution’s case or controversy requirement. In many cases, the substantive constitutional question is so intertwined with the question of precedent that a decision on a provision’s original meaning is necessary to decide the stare decisis issue. In other cases, the resolution of the substantive question should be treated as a holding, even if not strictly necessary to the result, because the question was answered using a method that appears designed to resolve the case. We then illustrate how and when prospective overruling should be applied by reference to cases involving the Commerce Clause, the Nondelegation Doctrine, and the Treaty Clause.