18 University of Pennsylvania Journal of Constitutional Law (2016 Forthcoming)
45 Pages Posted: 18 Aug 2016 Last revised: 12 Feb 2018
Date Written: August 17, 2016
Precedent poses a notoriously difficult problem for originalists. Some decisions – so-called super precedents – are so well baked into government that reversing them would wreak havoc. Originalists have been pressed to either acknowledge that their theory could generate major disruption or identify a principled exception to their insistence that judges are bound to enforce the Constitution’s original public meaning. The problem is especially acute for an originalist member of Congress. While the stylized process of adjudication narrows the questions presented to the Court, in Congress the question of a measure’s constitutionality is always on the table. And because framing constraints do not narrow the relevant and permissible grounds of decision as they do in litigation, evaluating a bill’s constitutionality arguably requires analysis of every possible constitutional flaw.
We argue that Congress may employ a working presumption that super precedents are constitutional and thereby refrain from re-examining them. Presuming that a super precedent is correct is different from endorsing its correctness. If the precedent is erroneous, the latter course gives priority to precedent rather than text. The former course, however, is a technique for avoiding the question whether the precedent is right or wrong. Congress may assume arguendo that well settled precedents are correct and focus its attention on questions that are politically salient. If the Court reconsiders super precedent in response to litigants, Congress does so in response to constituents. The responsibility for initiating a correction of constitutional error lies with the People. If the People want Congress to examine the soundness of constitutional precedent, they must convince it to do so.
Keywords: originalism, Congress, stare decisis, precedent, oath
JEL Classification: K10
Suggested Citation: Suggested Citation