Download this Paper Open PDF in Browser

Original Meaning and the Precedent Fallback

53 Pages Posted: 18 Jan 2015  

Randy J. Kozel

Notre Dame Law School

Date Written: January 17, 2015

Abstract

There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution’s original meaning should yield to contrary precedent.

This Article considers the role of judicial precedent not when it conflicts with the Constitution’s original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional adjudication. The strengths and weaknesses of the originalist methodology take on a unique valence when a primary commitment to original meaning is coupled with a fallback rule of deference to precedent. Even when the Constitution’s original meaning leaves multiple options available, falling back on precedent can channel judicial discretion and contribute to a stable, impersonal framework of constitutional law.

Keywords: precedent, stare decisis, constitutional law, constitutional theory, judicial decisionmaking, federal courts, supreme court, originalism

Suggested Citation

Kozel, Randy J., Original Meaning and the Precedent Fallback (January 17, 2015). Vanderbilt Law Review, Vol. 68, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=2551229

Randy J. Kozel (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

Paper statistics

Downloads
141
Rank
173,297
Abstract Views
768