Originalism, Popular Sovereignty and Reverse State Decisis

33 Pages Posted: 1 Dec 2006 Last revised: 30 Sep 2012

Kurt T. Lash

University of Illinois College of Law

Date Written: September 29, 2012

Abstract

Although all theories of constitutional interpretation must confront the issue of stare decisis, the interpretive theory of originalism has generated particular attention given the potential for radical discontinuity between original meaning and current constitutional jurisprudence. This potential discontinuity creates a crisis of legitimacy for originalists, for it forces one to choose between interpretive (original meaning) and formalist (rule of law) legitimacy. In fact, all interpretive methods must confront the tension that arises when precedent and "proper" interpretation diverge. Resolving the tension requires a normative theory that allows one to weigh the costs of interpretive error against the benefits of following precedent. Presumably, as the costs of interpretive error increase, the less likely the benefits of stare decisis will overcome the incentive to overrule the case. Accordingly, one's ultimate theory of stare decisis necessarily reflects the normative commitments underlying one's particular interpretive approach.

In this article, I address the most common (and most influential) justification for originalism: popular sovereignty and the judicially enforced will of the people. Popular sovereignty both reflects and builds upon the normative theory of democratic rule - government by the majoritarian consent of the governed. The costs of judicial error under this approach waxes and wanes depending on the degree of departure from the people's will and the constraints placed on the ability of political majorities to respond to the court's error. The greater the intrusion into the democratic process, the greater the costs of judicial error and, accordingly, the greater the need for "weightier" pragmatic arguments if precedent is to control. Judicial errors that leave an issue under the control of political majorities generally impose such low costs in terms of constitutional legitimacy that the pragmatic considerations of stare decisis may come to the fore. On the other hand, judicial errors that completely remove a matter from majoritarian politics impose such high costs in terms of constitutional legitimacy that they ought to be treated as presumptively in need of overturning - a presumption I refer to as reverse stare decisis.

Allowing majoritarian politics to play a role in determining the strength of prior precedent is not a new idea: it was first suggested by James Madison, one of the authors of the Constitution and a committed popular sovereigntist.

Suggested Citation

Lash, Kurt T., Originalism, Popular Sovereignty and Reverse State Decisis (September 29, 2012). 93 Virginia Law Review 1437 (2007). Available at SSRN: https://ssrn.com/abstract=948584

Kurt T. Lash (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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