Stare Decisis in an Originalist Congress

Abstract

With presidential candidates and members of Congress calling upon the political branches to reassert their role as constitutional interpreters, there is an urgent need to explore what it would mean for Congress to take constitutional interpretation seriously. In particular, if Congress were originalist, how would it go about its interpretive task? I have previously argued that originalist theory requires Congress to be originalist in its interpretation of the Constitution. This paper examines whether an originalist Congress would owe deference to the constitutional judgments of previous congresses. In other words, should a form of stare decisis prevail in an originalist Congress?

Keywords: originalism, Congress, Katyal, Maltz, Monaghan, stare decisis, precedent