Transcription of ORIGINALISM AND STARE DECISIS
1 \\jciprod01\productn\N\NDL\92-5\ : 1 5-JUL-1715:26 ORIGINALISM AND STARE DECISISAmy Coney Barrett*INTRODUCTIONJ ustice Scalia was the public face of modern ORIGINALISM . Originalismmaintains both that constitutional text means what it did at the time it wasratified and that this original public meaning is authoritative. This theorystands in contrast to those that treat the Constitution s meaning as suscepti-ble to evolution over time. For an originalist, the meaning of the text is fixedso long as it is claim that the original public meaning of constitutional text consti-tutes law is in some tension with the doctrine of STARE DECISIS . STARE DECISIS isa sensible rule because, among other things, it protects the reliance interestsof those who have structured their affairs in accordance with the Court sexisting cases.
2 But what happens when precedent conflicts with the originalmeaning of the text? If Justice Scalia is correct that the original public mean-ing is authoritative, why is the Court justified in departing from it in thename of a judicial policy like STARE DECISIS ? The logic of ORIGINALISM mightlead to some unpalatable results. For example, if the original meaning of theConstitution s Gold Clauses prohibits the use of paper money, is an original-ist bound to plunge the economy into ruin? Some constitutional theoriststreat precedent as capable of supplementing and even supplanting the text shistorical meaning; for them, choosing to follow precedent that divergesfrom the original meaning is relatively unproblematic.
3 Originalists, in con-trast, have difficulty identifying a principled justification for following suchprecedent, even when the consequences of overruling it would be extraordi-narily with this problem, Justice Scalia famously described himself as a faint-hearted originalist who would abandon the historical meaning whenfollowing it was He claimed that STARE DECISIS is not part of my 2017 Amy Coney Barrett. Individuals and nonprofit institutions may reproduceand distribute copies of this Essay in any format at or below cost, for educational purposes,so long as each copy identifies the author, provides a citation to the Notre Dame Law Review,and includes this provision in the copyright notice.
4 *Diane and Miller, II Research Chair in Law, Notre Dame Law School. ThisEssay was prepared for the Notre Dame Law Review s federal courts symposium on thejurisprudence of Justice Scalia. Thanks to all participants for discussing and therebysharpening the argument developed in this Antonin Scalia, ORIGINALISM : The Lesser Evil, 57 U. CIN. L. REV. 849, 864 (1989) ( Ihasten to confess that in a crunch I may prove a faint-hearted originalist. ). Justice Scalia1921\\jciprod01\productn\N\NDL\92- 5\ : 2 5-JUL-1715:261922notre dame law review[vol. 92:5originalist philosophy; it is a pragmatic exception to it. 2 That concession lefthim vulnerable to criticism from both his intellectual opponents and hisallies.]
5 His opponents argued that Justice Scalia s willingness to make a prag-matic exception revealed that ORIGINALISM is unprincipled in theory andunworkable in practice. Some of his allies contended that a principledoriginalist should not be afraid to depart from even well-settled tension between STARE DECISIS and ORIGINALISM gave STARE DECISIS anewly significant role in debates about constitutional theory. To be sure,judges and scholars had long grappled with the pragmatic considerationsthat inform the choice between keeping law settled and getting it right. Butfor an originalist, the decision whether to follow erroneous precedent can bemore than a matter of weighing the costs and benefits of change.
6 At least incases involving the interpretation of constitutional text, originalists arguablyface a choice between following and departing from the law embodied inthat text. While the debate about STARE DECISIS is old, modern originalismintroduced a new issue: the possibility that following precedent might some-times be issue was unexplored before Justice Scalia helped propel original-ism to prominence. Since then, the question whether STARE DECISIS is compat-ible with ORIGINALISM has occupied both originalists and their critics. In thisEssay, I explore what light Justice Scalia s approach to precedent casts on thatquestion. I argue that while he did treat STARE DECISIS as a pragmatic excep-tion to ORIGINALISM , that exception was not nearly so gaping as his faint-hearted quip suggests.
7 In fact, a survey of his opinions regarding precedentsuggests new lines of inquiry for originalists grappling with the role of staredecisis in constitutional THE PROBLEM OF PRECEDENTB efore addressing the tension between ORIGINALISM and STARE DECISIS , it isimportant to emphasize that precedent itself is not only consistent with, butcritical to, ORIGINALISM . Most discussions of ORIGINALISM s relationship to pre-cedent focus on prior Supreme Court opinions. Yet one cannot paint a com-plete picture of Justice Scalia s attitude toward precedent without addressinghis treatment of nonjudicial precedent. In an important sense, originalismcan be understood as a quintessentially precedent-based theory, albeit onethat does not look primarily to judicial decisions as its this statement insofar as it indicated his willingness to hold laws unconstitutionalsimply because they were COYLE, THE ROBERTS COURT: THE STRUG-GLE FOR THE CONSTITUTION 165 (2013) (reporting a 2011 interview in which Justice Scalia recanted being a faint-hearted originalist and asserted that, contrary to his 1989 state-ment, he would uphold a state law imposing a punishment like notching of ears because it s a stupid idea but it s not unconstitutional ).
8 He never recanted it, however, insofar asit reflected his pragmatic approach to STARE SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 140(Amy Gutmann ed., 1997).\\jciprod01\productn\N\NDL\92-5\ : 3 5-JUL-1715:262017] ORIGINALISM and STARE decisis1923 Originalists maintain that the decisions of prior generations, cast in rati-fied text, are controlling until lawfully changed. The contours of those deci-sions are typically discerned by historical sources. For example, the meaningof the original Constitution may be gleaned from sources like the Constitu-tional Convention, the ratification debates, the Federalist and Anti-FederalistPapers, actions of the early Congresses and Presidents, and early opinions ofthe federal courts.
9 ORIGINALISM thus places a premium on precedent, and tothe extent that originalists reject the possibility of deviating from historically-settled meaning, one could say that their view of precedent is particularlystrong, not weak as their critics often , Justice Scalia framed some of his most vociferous disagree-ments with Supreme Court precedent as a defense of a competing form ofprecedent: the history and traditions of the American people. For example,he characterized the standards of scrutiny as essential to determiningwhether laws violated the Equal Protection Clause but insisted that thesestandards cannot supersede and indeed ought to be crafted so as to reflect those constant and unbroken national traditions that embody the people sunderstanding of ambiguous constitutional texts.
10 3 When it came to theFree Speech Clause, the Justice said that he would take my guidance as towhat the Constitution forbids, with regard to a text as indeterminate as theFirst Amendment s preservation of the freedom of speech, and where thecore offense of suppressing particular political ideas is not at issue, from thelong accepted practices of the American people. 4 Dissenting from theCourt s holding that the Establishment Clause prohibits prayer at commence-ment ceremonies, Justice Scalia argued that the Court .. lays waste a tradi-tion that is as old as public school graduation ceremonies themselves, andthat is a component of an even more longstanding American tradition ofnonsectarian prayer to God at public celebrations generally.
