At Prawfsblawg, Randy Kozel (Notre Dame) has two posts Precedent and Constitutional Construction and Can Originalism Fall Back on Precedent? which continue comments made a post on Originalism and Precedent; noted on this blog here.
In his two new post, Professor Kozel respectively explains 1) "the role of deference to precedent as a principle of 'constitutional construction,'" and 2) "the status of precedent for versions of originalism that reject the concept of constitutional construction."
From the latter:
On balance, it seems to me that second-order stare decisis has much to recommend it. Deference to precedent helps to constrain judicial discretion in situations of constitutional uncertainty. It contributes to legal stability and continuity. It works as a principle of constitutional construction, and maybe as an original interpretive method. And it's entirely compatible with retaining a first-order commitment to the Constitution's original meaning.
That last point deserves a bit more explanation. If you are drawn to originalism by an overarching commitment to judicial constraint and the rule of law, there's no problem with adopting a second-order preference for precedent — which is, after all, a mechanism that's designed to promote those very values. [Ed: as noted, this is pretty much my view.] But what if you're drawn to originalism for other reasons? In particular, what if you think fidelity to original meaning is implicit in the notion of popular sovereignty? Such a belief might imply that when the Constitution's original meaning is uncertain, the proper judicial response is to defer to political majorities rather than judicial precedent. Only when the people have spoken through the Constitution, the argument goes, is the invalidation of political action consistent with popular sovereignty.
This is a serious and fair objection to second-order stare decisis as a fallback rule. It strikes me as perfectly plausible that if one seeks to maximize popular sovereignty, one might well conclude that judges should defer to democratic action absent some clear constitutional prohibition. Yet while this argument is plausible, I think it equally legitimate for an originalist to conclude that (a) popular sovereignty requires fidelity to the written Constitution as the people's expression of their sovereign prerogative, but (b) the legal system can maintain a core of popular sovereignty even if judges respond to constitutional uncertainty by deferring to precedent.
Posted at 9:00 AM