Originalism’s Stare Decisis Problem: The Place of Precedent in Theories of Interpretation

Originalism is a prevalent approach to legal interpretation, and stare decisis is a prevalent legal doctrine. Yet, the two do not happily coexist. This article explores the role that stare decisis plays in originalism and living constitutionalism, with a focus on the doctrine’s impact on each theory’s integrity in both academic and lay circles. Originalism runs into trouble on two levels. First, it is self-defeating in theoretical terms, as it treats stare decisis as a “pragmatic exception” to an interpretive theory premised on excluding policy considerations from legal analysis. Second, it undermines judicial legitimacy by failing to provide the public with a satisfying and plausible account for why a court’s interpretation changes over time. Thus, stare decisis creates a catch-22 for originalism; the first problem demands that originalists adopt weak stare decisis and the second that they adopt strong stare decisis. Living constitutionalism, in contrast, can more easily accommodate stare decisis. Precedent, especially landmark Supreme Court cases, can impact shared understandings and thus become constitutive elements of the meaning of ambiguous legal terms. In this way, stare decisis does not expose living constitutionalism to the same type of academic criticism because precedent is not an obstacle to, but a necessary component of accurate interpretation. Likewise, the fundamental precept of living constitutionalism is that the Constitution’s meaning can change over time, which provides the public with an explanation for legal change that is not tied to prior judicial error. Finally, after diagnosing originalism’s difficulties with stare decisis, this article proposes a novel theory of a “barely evolving Constitution” that has the potential to create a more harmonious relationship between originalism and stare decisis. This theory combines a principled explanation for adherence to super precedent with originalism’s central tenet, namely, that the original public meaning of the Constitution usually controls.