Justice Scalia was the public face of modern originalism. Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative. This theory stands in contrast to those that treat the Constitution's meaning as susceptible to evolution over time. For an originalist, the meaning of the text is fixed so long as it is discoverable.
The claim that the original public meaning of constitutional text constitutes law is in some tension with the doctrine of stare decisis. Stare decisis is a sensible rule because, among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court's existing cases. But what happens when precedent conflicts with the original meaning of the text? If Justice Scalia is correct that the original public meaning is authoritative, why is the Court justified in departing from it in the name of a judicial policy like stare decisis? The logic of originalism might lead to some unpalatable results. For example, if the original meaning of the Constitution's Gold Clauses prohibits the use of paper money, is an originalist bound to plunge the economy into ruin? Some constitutional theorists treat precedent as capable of supplementing and even supplanting the text's historical meaning; for them, choosing to follow precedent that diverges from the original meaning is relatively unproblematic. Originalists, in contrast, have difficulty identifying a principled justification for following such precedent, even when the consequences of overruling it would be extraordinarily disruptive.
Faced with this problem, Justice Scalia famously described himself as a "faint-hearted originalist" who would abandon the historical meaning when following it was intolerable. (1) He claimed that " stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it.'" (2) That concession left him vulnerable to criticism from both his intellectual opponents and his allies. His opponents argued that Justice Scalia's willingness to make a pragmatic exception revealed that originalism is unprincipled in theory and unworkable in practice. Some of his allies contended that a principled originalist should not be afraid to depart from even well-settled precedent.
The tension between stare decisis and originalism gave stare decisis a newly significant role in debates about constitutional theory. To be sure, judges and scholars had long grappled with the pragmatic considerations that inform the choice between keeping law settled and getting it right. But for an originalist, the decision whether to follow erroneous precedent can be more than a matter of weighing the costs and benefits of change. At least in cases involving the interpretation of constitutional text, originalists arguably face a choice between following and departing from the law embodied in that text. While the debate about stare decisis is old, modern originalism introduced a new issue: the possibility that following precedent might sometimes be unlawful.
This issue was unexplored before Justice Scalia helped propel originalism to prominence. Since then, the question whether stare decisis is compatible with originalism has occupied both originalists and their critics. In this Essay, I explore what light Justice Scalia's approach to precedent casts on that question. I argue that while he did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his "fainthearted" quip suggests. In fact, a survey of his opinions regarding precedent suggests new lines of inquiry for originalists grappling with the role of stare decisis in constitutional adjudication.
THE PROBLEM OF PRECEDENT
Before addressing the tension between originalism and stare decisis, it is important to emphasize that precedent itself is not only consistent with, but critical to, originalism. Most discussions of originalism's relationship to precedent focus on prior Supreme Court opinions. Yet one cannot paint a complete picture of Justice Scalia's attitude toward precedent without addressing his treatment of nonjudicial precedent. In an important sense, originalism can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.
Originalists maintain that the decisions of prior generations, cast in ratified text, are controlling until lawfully changed. The contours of those decisions are typically discerned by historical sources. For example, the meaning of the original Constitution may be gleaned from sources like the Constitutional Convention, the ratification debates, the Federalist and Anti-Federalist Papers, actions of the early Congresses and Presidents, and early opinions of the federal courts. Originalism thus places a premium on precedent, and to lhe extent that originalists reject the possibility of deviating from historically-settled meaning, one could say that their view of precedent is particularly strong, not weak as their critics often contend.
Moreover, Justice Scalia framed some of his most vociferous disagreements with Supreme Court precedent as a defense of a competing form of precedent: the history and traditions of the American people. For example, he characterized the standards of scrutiny as "essential" to determining whether laws violated the Equal Protection Clause but insisted that these standards "cannot supersede--and indeed ought to be crafted so as to reflect--those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts." (3) When it came to the Free Speech Clause, the Justice said that he would "take my guidance as to what the Constitution forbids, with regard to a text as indeterminate as the First Amendment's preservation of 'the freedom of speech,' and where the core offense of suppressing particular political ideas is not at issue, from the long accepted practices of the American people." (4) Dissenting from the Court's holding that the Establishment Clause prohibits prayer at commencement ceremonies, Justice Scalia argued that "the Court ... lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally." (5) And while Justice Scalia would not have interpreted the Due Process Clause to have a substantive component, he did not insist upon cleaning the slate altogether. Instead, he argued that any substantive content should be determined by history and tradition rather than by modern attitudes. (6) It was what many conceived of as wrong-headed and excessive devotion to this form of precedent--a devotion that made change difficult--that marked the fault line between Justice Scalia and those who take an evolutionary approach to constitutional interpretation.
Thus originalism does not breed contempt for precedent--quite the opposite. That said, originalism prioritizes what we might think of as the original precedent: the contemporaneously expressed understanding of ratified text. When new interpretations deviate from the old, and those deviations become entrenched, this comparatively new precedent and a commitment to the old can be in real tension. (7)
Originalism rests on two basic claims. (8) First, the meaning of constitutional text is fixed at the time of its ratification. (9) Second, the original meaning of the text controls because "it and it alone is law." (10) Nonoriginalists consider the text's historical meaning to be a relevant factor in interpreting the Constitution, but other factors, like value-based judgments, might overcome it. Originalists, by contrast, treat the original meaning as a relatively hard constraint.
Justice Scalia and his contemporaries did not pull originalism from thin air in the 1980s. On the contrary, Keith Whittington explains that
[a]s a method of constitutional interpretation in the United States, originalism has a long history. It has been prominently advocated from the very first debates over constitutional meaning. At various points in American history, originalism was not a terribly self-conscious theory of constitutional interpretation, in part because it was largely unchallenged as an important component of any viable approach to understanding constitutional meaning. Originalism, in its modern, self-conscious form, emerged only after traditional approaches had been challenged and, to some degree, displaced. (11) Justice Scalia was at the forefront of the movement that developed originalism in its "modern, self-conscious form" by defending it as the only democratically legitimate way to interpret and apply the Constitution.
As originalism rose to prominence, its relationship to precedent became an issue. (12) Stare decisis had received scholarly attention throughout the twentieth century. But before originalism recalled attention to the claim that the original meaning of the text constitutes binding law, no one worried much about whether adherence to precedent could ever be unlawful--as it might be if the text's original meaning constitutes the law and relevant precedent deviates from it. To be sure, many had contended that stare decisis ought to be relatively weak in constitutional cases, both out of respect for the Constitution and because of the difficulty of correcting mistakes by constitutional amendment. (13) Justice Douglas, for example, famously asserted that "it is the Constitution which [a Justice] swore to support and defend, not the gloss which his predecessors may have put on it." (14) He did not suggest, however, either that the Court lacked the authority to sometimes adhere to its predecessors' erroneous gloss or that it was problematic for the Court to follow precedent that conflicted with the...