At Liberty Law Blog, John McGinnis: Originalists Need a Distinctive Theory of Precedent. Discussing the recent dormant commerce clause decision, he observes:
None of the justices [in Comptroller v. Wynne] offer an adequate reconciliation of originalism and precedent. Characteristically, Justice Thomas is untroubled by the enormous amount of precedent on the dormant commerce clause that his opinion rejects, but he has never shown why originalism must wholly reject the relevance of precedents. Justice Scalia accepted some precedent in the case—the notion that state laws that are facially discriminatory against citizens of others states are unconstitutional—but rejected the more flexible dormant commerce doctrine that the Court has long employed. His approach to precedent here is also characteristic– characteristically ad hoc. He has never found rules for precedent that are integrated with his theory of originalism rather than with his jurisprudential desire for clear rules.
Justice Samuel Alito’s opinion was no better in its analysis of precedent and original meaning. … Justice Alito was content to note that the dormant commerce clause can be traced back to some dicta in Chief Justice John Marshall’s opinion in Gibbons v. Ogden and has been followed in scores of opinions. These correct observations do not offer a rule for precedent that best advances originalism.
And in conclusion:
But I am not faulting the justices alone. Originalist scholars have not devoted as much attention as they should to determining the content of such rules. If originalism is going to be successful, … a lot more work needs to be done. A mature orginalism is an orginalism that comes to terms with precedent.
As Professor McGinnis notes, he and Mike Rappaport have done the most to assess the relationship between originalism and precedent.
My preliminary thoughts on the matter can be found in this article. It sketches an approach I would described as "strong and narrow" — that is, that precedents should have very strong binding force, but only as to their particular holdings and not as to their (arguable) implications. (The article does not not make a case for using this approach; it only outlines what this approach would look like and argues that it is feasible.) The article's approach is similar, I think, to what Justice Scalia adopts for the dormant commerce clause (but as Professor McGinnis says, Scalia does not embrace that approach across the board).
Posted at 6:09 AM