The Failings of Orginalism: The Federal Courts and the Power of Precedent

110 Pages Posted: 26 Nov 2003

See all articles by Norman Williams

Norman Williams

Willamette University - College of Law


The debate over the constitutionality of court of appeals rules designating their unpublished opinions as non-precedential and forbidding citation to those opinions has focused exclusively on the historical foundation for such treatment of opinions by courts. The Eighth Circuit in Anastasoff v. United States and the Ninth Circuit in Hart v. Massanari reached different conclusions regarding the constitutionality of their respective no-precedent rules, but their methodological approaches were the same. Both courts asked whether the Framers' understanding of Article III and the "judicial power" vested in the federal courts would uphold or condemn such rules.

I demonstrate that, contrary to these courts' suppositions, history cannot provide the authoritative answer to the constitutionality of the no-precedent rules. The Framers said precious little (comparatively speaking) about the new federal courts to be created by the new Constitution, and what little they did say was confined largely to the composition and jurisdictional reach of the new courts, not to the manner in which the judges would discharge their interpretive duties. The few times that the Framers mention the role of precedent, they did so in the context of discussions of other matters, such as the Supreme Court's equity powers. At best, their cursory and passing references to the role of precedent signify an expectation among select Framers, who had been schooled in the common law tradition, that the courts would consult prior judicial opinions in deciding cases; they do not reflect any broadly shared consensus regard the role of precedent in adjudication, much less any agreement that the Constitution itself compels the use of and reliance upon precedent as a constituent of the "judicial power."

More generally, my analysis shows that, in assessing the constitutionality of a whole host of procedural rules adopted by the federal courts, the original understanding of Article III and the "judicial power" provides little insight into the constitutionality of those rules. Hence, originalism provides an incomplete and ultimately inconclusive analytical approach for resolving questions regarding the procedures and practices of the federal courts. Moreover, originalism's default rule - that, unless the Framers condemned the practice, it is constitutional - has no applicability to rules adopted outside democratic, public-regarding processes, such as is the case with court rules adopted by the federal judges themselves.

Keywords: Federal courts, precedent, originalism

JEL Classification: K400, K410

Suggested Citation

Williams, Norman, The Failings of Orginalism: The Federal Courts and the Power of Precedent. Available at SSRN: or

Norman Williams (Contact Author)

Willamette University - College of Law ( email )

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