Over at Law and Liberty, John McGinnis and I have an essay out entitled “Emancipating the Constitution From Non-Originalist Precedent.” The essay argues that some of the recent Supreme Court cases used various devices to cut back on nonoriginalist precedent, without actually overruling that precedent. The essay begins:
The biggest challenge to the rise of originalism is precedent. Although originalism is enjoying more support in the judiciary and in the academy than it has in a century, hundreds of non-originalist Supreme Court precedents still shape our legal world. That means originalists face a clear dilemma: If they allow these precedents to dominate, constitutional doctrine will remain non-originalist, except in areas, such as the Second Amendment, which had few, if any, controlling precedents before the originalist revival. Conversely, if originalists systematically overturn non-originalist precedent, they risk disrupting established rules and causing legal instability.
The essay then continued:
This term, the Court provided early signs of a solution [to this dilemma]. Two decisions clearly showed that it can cut back non-originalist precedents to restore more of the Constitution’s original meaning, when it can find a principled stopping point. Another decision suggests the Court may overrule some precedents prospectively. That is, it will move the law to the original meaning for future adjudications, while not overruling past decisions in which the precedent controlled. Both methods provide a via media for harmonizing precedent and originalism. Both methods would restore original meaning while protecting reliance interests and preventing undue disruption.
The essay then discusses three cases: Grants Pass v. Johnson (refusing to extend a nonoriginalist 8th Amendment precedent), SEC v. Jarkesy (narrowly reading a nonoriginalist 7th Amendment and Article III precedent), and Loper Bright v. Raimondo (prospectively overruling Chevron deference).
Read the whole thing!
Posted at 8:00 AM