An Originalist Theory of Precedent: The Privileged Place of Originalist Precedent
66 Pages Posted: 10 Sep 2009 Last revised: 3 May 2012
Date Written: April 25, 2011
In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory.
First, I briefly review the debate in originalism over the role of constitutional precedent. Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist precedents.
Third, in the heart of the Article, I explain the roles of originalist precedent in constitutional interpretation, described by the Interpretative and Constructive Approaches toward precedent. The Interpretative Approach is that originalist precedent serves the epistemic role of providing presumptive evidence of the original meaning and its proper application. The Constructive Approach is that originalist precedent serves the creative role of determining the defeasible content of the Constitution’s meaning.
Next, I explain how the Interpretative and Constructive Approaches operate in practice. I show that originalist precedent serves the roles of implementing the original meaning, embedding the original meaning in constitutional law, and affecting other areas of constitutional law through its gravitational force. In so arguing, I will elucidate how the role of originalist precedent varies depending on whether the context is one of constitutional interpretation or constitutional construction.
Then, I briefly revisit the original meaning of “judicial Power” in Article III, which requires federal judges to give significant respect to constitutional precedent. I show that the Interpretative and Constructive Approaches meet Article III’s mandate. More importantly, they show that it makes sense to follow Article III’s mandate.
The conception of originalist precedent offered in this Article completes the circle of my originalist theory of precedent. In an earlier article, I showed why and how judges should give nonoriginalist precedent significant respect. In this Article, I finish that project by showing how judges should give originalist precedent significant respect via the Interpretative and Constructive Approaches.
Keywords: originalism, original meaning, precedent, stare decisis, judicial power, interpretation, construction
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