Reconciling Originalism and Precedent
John O. McGinnis
Northwestern University - Pritzker School of Law
Michael B. Rappaport
University of San Diego School of Law
May 5, 2009
Northwestern University Law Review, Vol. 103, No. 2, 2009
Northwestern Public Law Research Paper No. 09-12
San Diego Legal Studies Paper No. 09-008
Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent. This Article challenges this common view of originalism and argues that nothing in the Constitution forbids judges from following precedent. First, the Constitution as a matter of judicial power incorporates a minimal notion of precedent. Second, the Constitution treats precedent as a matter of federal common law that it is revisable by congressional statute. Thus, the courts in the first instance and Congress ultimately have significant discretion over what precedent rules should be adopted.
Having established that the original meaning of the Constitution does not forbid precedent, the next question is: what is the normatively best approach to precedent under originalism? As consequentialists, we argue that precedent doctrine should consist of rules that require precedent to be followed when doing so would produce net benefits and that require original meaning to be applied instead of precedent in other cases We then balance these benefits of following the original meaning with the benefits of following precedent. This Article, while not offering a full precedent doctrine, does recommend three specific precedent rules. First, precedent should be followed when it is necessary to avoid imposing enormous costs. Second, precedent should be followed when it is entrenched-when the precedent enjoys strong support that is comparable to that enjoyed by a constitutional amendment. Third, precedent should be followed when it corrects the results of a failure in the original super majoritarian process of making the Constitution, such as the exclusion of African Americans.
Number of Pages in PDF File: 54
Keywords: pecedent, originalism, constitutional theory
JEL Classification: K19
Date posted: May 7, 2009