Originalism and Stare Decisis

Amy Coney Barrett*

Justice Scalia was the public face of modern originalism. Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative. This theory stands in contrast to those that treat the Constitution’s meaning as susceptible to evolution over time. For an originalist, the meaning of the text is fixed so long as it is discoverable.

The claim that the original public meaning of constitutional text constitutes law is in some tension with the doctrine of stare decisis. Stare decisis is a sensible rule because, among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases. But what happens when precedent conflicts with the original meaning of the text? If Justice Scalia is correct that the original public meaning is authoritative, why is the Court justified in departing from it in the name of a judicial policy like stare decisis? The logic of originalism might lead to some unpalatable results. For example, if the original meaning of the Constitution’s Gold Clauses prohibits the use of paper money, is an originalist bound to plunge the economy into ruin? Some constitutional theorists treat precedent as capable of supplementing and even supplanting the text’s historical meaning; for them, choosing to follow precedent that diverges from the original meaning is relatively unproblematic. Originalists, in contrast, have difficulty identifying a principled justification for following such precedent, even when the consequences of overruling it would be extraordinarily disruptive.

Faced with this problem, Justice Scalia famously described himself as a “faint-hearted originalist” who would abandon the historical meaning when following it was intolerable.¹ He claimed that “stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it.”² That concession left him vulnerable to criticism from both his intellectual opponents and his allies. His opponents argued that Justice Scalia’s willingness to make a pragmatic exception revealed that originalism is unprincipled in theory and unworkable in practice. Some of his allies contended that a principled originalist should not be afraid to depart from even well-settled precedent.

The tension between stare decisis and originalism gave stare decisis a newly significant role in debates about constitutional theory. To be sure, judges and scholars had long grappled with the pragmatic considerations that inform the choice between keeping law settled and getting it right. But for an originalist, the decision whether to follow erroneous precedent can be more than a matter of weighing the costs and benefits of change. At least in cases involving the interpretation of constitutional text, originalists arguably face a choice between following and departing from the law embodied in that text. While the debate about stare decisis is old, modern originalism introduced a new issue: the possibility that following precedent might sometimes be unlawful.

This issue was unexplored before Justice Scalia helped propel originalism to prominence. Since then, the question whether stare decisis is compatible with originalism has occupied both originalists and their critics. In this Essay, I explore what light Justice Scalia’s approach to precedent casts on that question. I argue that while he did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his “fainthearted” quip suggests. In fact, a survey of his opinions regarding precedent suggests new lines of inquiry for originalists grappling with the role of stare decisis in constitutional adjudication.

Continue reading in the print edition . . .

© 2017 Amy Coney Barrett. Individuals and nonprofit institutions may reproduce and 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.

*Diane and M.O. Miller, II Research Chair in Law, Notre Dame Law School. This Essay was prepared for the Notre Dame Law Review’s federal courts symposium on the jurisprudence of Justice Scalia. Thanks to all participants for discussing and thereby sharpening the argument developed in this contribution.

1 Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989) (“I hasten to confess that in a crunch I may prove a faint-hearted originalist.”). Justice Scalia recanted this statement insofar as it indicated his willingness to hold laws unconstitutional simply because they were unpalatable. See Marcia Coyle, The Roberts Court: The Struggle 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 statement, he would uphold a state law imposing a punishment like “notching of ears” because “it’s a stupid idea but it’s not unconstitutional”). He never recanted it, however, insofar as it reflected his pragmatic approach to stare decisis.

2 Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 140 (Amy Gutmann ed., 1997).