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From ADF:
Legal Periodical: Originalism, Precedent, and Judicial Restraint
John O. McGinnis, Michael B. Rappaport, Originalism, Precedent, and Judicial Restraint, 34 Harv. J.L. & Pub. Pol’y 121 (Winter 2011)
Although originalism has grown in popularity in recent years, the theory continues to face major criticisms. One such criticism is that originalism cannot accommodate precedent. This criticism takes two forms. First, some critics, as well as some advocates of originalism, argue that originalism is inconsistent with precedent and therefore originalist judges must overturn all precedents that conflict with the Constitution’s original meaning. [FN1]
If these scholars are correct, however, originalism becomes far less attractive because it would obligate judges to make a number of radical and unpopular decisions. For example, depending on one’s reading of the Constitution’s original meaning, an originalist might be required to declare paper money unconstitutional or to reverse Brown v. Board of Education. [FN2] Second, even if originalists do follow precedent on pragmatic grounds, critics argue that this approach undermines originalism and its distinctive virtues. If judges can simply decide which precedents they want to follow, then originalism is little better than an unprincipled nonoriginalism.
This short Essay, which is based on a longer article, [FN3] responds to each of these precedent-based challenges to *122 originalism. First, we argue that there is no fundamental conflict between originalism and precedent. The original meaning of the Constitution allows for precedent because it treats precedent as a matter of federal common law that Congress can override by statute. [FN4]
Second, we argue that one can articulate a principled doctrine of precedent that is compatible with originalism and that preserves the most important benefits of both originalism and precedent. Our normative approach is consequentialist. A normatively desirable doctrine of precedent would follow precedent when the benefits of doing so are greater than the benefits of returning to the original meaning and would follow the original meaning in the reverse situation. [FN5]
Turning to this task, we begin by identifying the principal benefits of following the original meaning and the principal benefits of following precedent. [FN6] We then recommend a few precedent rules. [FN7] Our theory recommends an intermediate approach to precedent, sometimes following it and sometimes not. Although this theory is less respectful of precedent than the Supreme Court’s existing approach, [FN8] it would avoid the problems created by the wholesale rejection of nonoriginalist precedents while leaving a significant role for originalism in constitutional interpretation.
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Published Wednesday, February 2, 2011 6:44 AM
Legal Periodical: Originalism, Precedent, and Judicial Restraint
John O. McGinnis, Michael B. Rappaport, Originalism, Precedent, and Judicial Restraint, 34 Harv. J.L. & Pub. Pol’y 121 (Winter 2011)
Although originalism has grown in popularity in recent years, the theory continues to face major criticisms. One such criticism is that originalism cannot accommodate precedent. This criticism takes two forms. First, some critics, as well as some advocates of originalism, argue that originalism is inconsistent with precedent and therefore originalist judges must overturn all precedents that conflict with the Constitution’s original meaning. [FN1]
If these scholars are correct, however, originalism becomes far less attractive because it would obligate judges to make a number of radical and unpopular decisions. For example, depending on one’s reading of the Constitution’s original meaning, an originalist might be required to declare paper money unconstitutional or to reverse Brown v. Board of Education. [FN2] Second, even if originalists do follow precedent on pragmatic grounds, critics argue that this approach undermines originalism and its distinctive virtues. If judges can simply decide which precedents they want to follow, then originalism is little better than an unprincipled nonoriginalism.
This short Essay, which is based on a longer article, [FN3] responds to each of these precedent-based challenges to *122 originalism. First, we argue that there is no fundamental conflict between originalism and precedent. The original meaning of the Constitution allows for precedent because it treats precedent as a matter of federal common law that Congress can override by statute. [FN4]
Second, we argue that one can articulate a principled doctrine of precedent that is compatible with originalism and that preserves the most important benefits of both originalism and precedent. Our normative approach is consequentialist. A normatively desirable doctrine of precedent would follow precedent when the benefits of doing so are greater than the benefits of returning to the original meaning and would follow the original meaning in the reverse situation. [FN5]
Turning to this task, we begin by identifying the principal benefits of following the original meaning and the principal benefits of following precedent. [FN6] We then recommend a few precedent rules. [FN7] Our theory recommends an intermediate approach to precedent, sometimes following it and sometimes not. Although this theory is less respectful of precedent than the Supreme Court’s existing approach, [FN8] it would avoid the problems created by the wholesale rejection of nonoriginalist precedents while leaving a significant role for originalism in constitutional interpretation.
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Published Wednesday, February 2, 2011 6:44 AM
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