At Law & Liberty, Giancarlo Canaparo & Thomas Jipping (Heritage Foundation): Getting Originalism Wrong (critiquing this essay by William Treanor). From the introduction:
William Treanor … has an op-ed in Slate in which he claims that the Framers “believed that courts should defer to precedent” rather than the Constitution’s original public meaning. On this basis he criticizes the conservative justices as “flawed” originalists because they have the opposite priorities, willing to overrule precedents that depart from the Constitution’s original public meaning.
This theory allows him to complain about the Supreme Court overruling Roe v. Wade in Dobbs v. Jackson Women’s Health Organization and Lemon v. Kurtzman in Kennedy v. Bremerton School District on some basis other than the one which likely truly motivates him, which is that he likes the overruled precedents better than the overruling ones.
But Treanor’s position raises many questions, the first of which is: does he believe that precedent should never be overruled? If so, we would be stuck with cases like Plessy v. Ferguson (upholding separate but equal), Korematsu v. United States (upholding the internment of people of Japanese ancestry during WWII), or Pace v. Alabama (upholding anti-miscegenation laws)—all of which were precedents for longer than Roe.
Well, no. Treanor hedges and, pointing to Plessy specifically, says that “certainly some precedents of the court should be overturned.” Which brings us to the next obvious question: what rule does the dean propose to distinguish cases, like Plessy, that should be overruled from cases, like Roe, that should not?
This is, after all, the most important question. It’s surprising, therefore, that Dean Treanor has nothing to offer. No rule, no principle, no criteria, nothing. All he knows for sure is that a “decision to overturn precedent cannot be based on a jurisprudence of original meaning.”
Precedent is a challenge for any theory of constitutional interpretation, but I think this critique misunderstands Dean Treanor's claim. His point is that if the framers believed precedent should never be overruled (or, I would say for an original meaning approach, if the original meaning of the judicial power is that courts lack power to overrule precedent), then originalist judges, uniquely, should not overrule precedent.
I think he's right, if his premise is right. But I don't think his premise is right. I don't think he's shown that founding-era courts lacked power to overrule precedents. He has some generalized quotes from Madison and Hamilton that seem to me somewhat short of definite statements. My impression is that courts of the period actually did overrule precedents. And in any event, as applied to Dobbs and other recent cases, the question for originalists is what to do about nonoriginalist precedent — that is, precedent that (from an originalist perspective) itself exceeded the bounds of the judicial role. Statements from the founders about the general value of precedent don't address that question.
Posted at 6:45 AM