An Originalist Approach to Prospective Overruling

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John O. McGinnis* & Michael Rappaport**

Originalism has become a dominant jurisprudential theory on the Supreme Court.  But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order.  This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings.  Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional.  Under our approach, the Court would employ a rule-based doctrine for gradually returning our constitutional law to the original meaning without upsetting the reliance interests that stare decisis rightly protects.

While originalists, like Justice Scalia, have been extremely critical of the prospective overruling that the Warren Court used to implement its constitutional revolution, we here defend an approach to prospective overruling that would avoid these originalist criticisms.  We show that prospective overruling is a legitimate form of the common law of precedent and thus encompassed by the judicial power.  We also show that prospective overruling is not dictum that runs afoul of the Constitution’s case-or-controversy requirement.  In many cases, the substantive constitutional question is so intertwined with the question of precedent that a decision on a provision’s original meaning is necessary to decide the stare decisis issue.  In other cases, the resolution of the substantive question should be treated as a holding, even if not strictly necessary to the result, because the question was answered using a method that appears designed to resolve the case.  We then illustrate how and when prospective overruling should be applied by reference to cases involving the Commerce Clause and the nondelegation doctrine.

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© 2023 John O. McGinnis & Michael Rappaport.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

* George C. Dix Professor in Constitutional Law, Northwestern University.  We are grateful to participants in a workshop at Northwestern University and in the Works-in-Progress Conference at the Originalism Center at the University of San Diego for helpful comments.

** Hugh and Hazel Darling Foundation Professor of Law, University of San Diego.