TRUMPING PRECEDENT WITH ORIGINAL MEANING:
NOT AS RADICAL AS IT SOUNDS
Randy E. Barnett
Boston University School of Law Working Paper 05-08
Abstract
In recent years, originalism as a method of interpretation has grown in
its intellectual and practical appeal. The latest challenge to originalism
from nonoriginalists is based on the doctrine of precedent. Acceptance
of originalism, it is charged, would necessitate the reversal of crucially
important landmark decisions and thereby provides a reductio ad absurdum
of originalism. Until recently, few originalists have considered carefully
the relationship between originalism and the doctrine of stare decisis
(though this situation is starting to change). In this short essay, I
contend that original meaning should indeed trump previous Supreme Court
decisions that are inconsistent with the original meaning of the Constitution.
But the main thrust of the essay explains why this implication is not
as radical as it sounds because there remains much room for the doctrine
of precedent in originalism. It is not incompatible with original public
meaning originalism to adhere to precedent in cases involving (a) nonconstitutional
issues, (b) matters of constitutional construction, (c) detrimental reliance
by identifiable individuals, (d) epistemic concerns about the correctness
of originalist claims, and perhaps also (e) where the text was originally
ambiguous. Knowing the degree to which a commitment to originalism entails
the rejection of the doctrine of precedent may well influence the degree
to which originalism is deemed acceptable by academics, judges, and the
general public. For this reason, it is important to make clear that a
commitment to following original meaning where it conflicts with judicial
precedent is far less radical a stance than critics of originalism, and
perhaps even some originalists, assume.
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Randy E. Barnett Contact Information
rbarnett@gmail.com
Carmack Waterhouse Professor of Legal Theory
Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC 20001
Presentation and Publication Information:
SSRN Location:
http://www.ssrn.com/abstract=714982
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