At Prawfsblawg, Randy Kozel (Notre Dame): Originalism and Precedent (commenting on the recent exchange between Will Baude and Eric Posner). Two key points, first:
There are lots of different value judgments that might persuade someone to adopt the originalist methodology. And at least some of those value judgments also support precedent. So, for example, if you are generally sympathetic to originalism for reasons having to do with the rule of law, you might nevertheless support adherence to precedent (even erroneous precedent) when an overruling seems problematic in rule-of-law terms. To my mind, that type of theory isn't diluted by adherence to precedent. Rather, deference to precedent and deference to original meaning are just different methods of pursuing the theory's underlying aim.
I agree, since this pretty much describes my view. And then:
I'd also add that I think the relationship between precedent and originalism has two important dimensions. The first is what happens when precedent conflicts with original meaning. The second is what happens when the original meaning is unclear. An originalist might believe that when a precedent conflicts with original meaning, the precedent must give way. Even so, that same originalist might conclude that when there is no such conflict, the best approach is to give strong deference to precedent in order to promote values such as stability and predictability.
Sounds right to me.
Related: Professor Kozel has another Prawfsblawg post, just on precedent: The Scope of Precedent – arguing that deciding what part of prior opinions to regard as precedential (as opposed to nonbinding "dicta") is "complex and value-laden." I agree, but I think we may differ on the implications. My view is that only a narrow view of precedent (that is, a narrow reading of prior cases' binding effects) is tenable, precisely because anything beyond that is "complex an value-laden" and thus not susceptible to any sort of consensus.
Posted at 10:58 PM