Originalism, Stare Decisis, and Constitutional Authority

Abstract

This chapter in the forthcoming volume "Precedent in the United States Supreme Court" (Springer 2013) examines the relationship among three normative questions about American constitutional law: How should the Constitution be interpreted? When may (or should) the Supreme Court overrule its own constitutional precedents? And why is the Constitution binding at all? The author begins by deconstructing the “special difficulty” with stare decisis that proponents of originalist interpretation often perceive. That difficulty, the author contends, can be explained only by reference to some underlying normative theory of constitutional authority ― of why the Constitution binds us in the first place. The author then assesses four extant accounts of constitutional authority to determine whether any of them implies both originalism and a distrust of stare decisis. While three such accounts (Values Imposition, Consent, and Moral Guidance) may support originalism and reject stare decisis, none of these accounts is plausible. A fourth account (Dispute Resolution) is more plausible but implies neither strong originalism nor a rejection of stare decisis. Neither originalism nor distrust of precedent, therefore, appears to be supported by a plausible account of constitutional authority.

Keywords: United States Supreme Court, United States Constitution, stare decisis, precedent, constitutional interpretation, originalism, constitutional authority

JEL Classification: K19, K40