ORIGINALIST THEORY AND PRECEDENT: A PUBLIC MEANING APPROACH.

• Author: Solum, Lawrence B.
• Position: Book review

SETTLED VERSUS RIGHT: A THEORY OF PRECEDENT. By Randy J. Kozel. (2) Cambridge University Press. 2017. PP. x + 180. $99.99 (hardcover), $34.99 (paper).

INTRODUCTION: ORIGINAL1SM AND PRECEDENT, AGAIN?

Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). (4) The debate includes contributions from Randy Barnett, (5) Steven Calabresi, (6) Kurt Lash, (7) Gary Lawson, (8) John McGinnis with Michael Rappaport, (9) Michael Paulsen, (10) and Lee Strang, (11) not to mention Justice Antonin Scalia (12)--all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, (13) Ronald Dworkin, (14) Michael Gerhardt, (15) Randy Kozel, (16) and David Strauss. (17) Some writers are more difficult to classify; Akhil Amar comes to mind. (18) And there are many other contributions to the debate. (19) Opinions range from the view that precedent should invariably prevail over the original public meaning of the constitutional text to the polar opposite view, that precedent must give way to original meaning in almost every case. (20)

Here is the roadmap. Part I provides a brief introduction to contemporary originalism. Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court.

1. A VERY BRIEF INTRODUCTION TO PUBLIC MEANING ORIGINALISM

   "Public Meaning Originalism" (PMO) is the version of originalist constitutional theory that holds that the content communicated by the constitutional text to the public at the time each provision was framed and ratified is binding on constitutional actors. Like almost all the other members of the originalist family of constitutional theories, (21) PMO includes two core ideas: (1) the Fixation Thesis (the meaning of each constitutional provision is fixed at the time the provision was framed and ratified), and (2) the Constraint Principle (constitutional practice should, at a minimum, be consistent with the original meaning of the constitutional text). (22)

   PMO goes beyond the core by arguing that the best understanding of "original meaning" is the public meaning of the constitutional text at the time each provision was framed and ratified: this is the Public Meaning Thesis. (23) The public meaning of the constitutional text is the communicative content, understood as the content communicated to the public by the text and the publicly available context of constitutional communication. Thus, the original meaning is a function of both (1) semantics and (2) contextual enrichment. The semantic meaning of the constitutional text is produced by the conventional semantic meanings of the words and phrases as combined by syntax (roughly, grammar and punctuation): this is sometimes called the "literal meaning" of the text. But "literal meaning" is not the same as the original public meaning of the text. For one thing, semantic ambiguities are usually resolved by context. For another, the full communicative content of the text includes what philosophers of language and linguistic theorists call "pragmatics": I will use the phrase "contextual enrichment" (24) to refer to the content generated by implicatures, implicitures, presuppositions, modulations, and free enrichments. (25) Thus, the full communicative content communicated to the public by the constitutional text is contextually disambiguated and enriched semantic content.

   Other members of the originalist family differ from PMO in their account of the nature of original meaning. For example, the most sophisticated contemporary version of intentionalism holds that the meaning of the constitutional text is determined by the communicative intentions of the authors. (26) Similarly, original methods originalism holds that the meaning of the text is the meaning that the text would have been given at the time of framing and ratification if the original methods of constitutional interpretation had been applied. (27) Original law originalism is different: it holds that the original law (and not the meaning of the text) continues to be binding, unless it is properly changed by procedures authorized by the original law itself. (28)

   Many originalists also affirm the interpretation-construction distinction. (29) For the purposes of this Article, "interpretation" is stipulated to be the activity that discovers the meaning (more precisely, communicative content (30) ) of the constitutional text. "Construction" is stipulated to be the activity that determines the legal effect to be given that meaning. Legal effects include the decision of cases by courts, constitutional actions by officials and institutions and the announcement of legal norms in the form of constitutional doctrines--usually, but not always, contained in judicial opinions. Although this distinction might be described using a different vocabulary, the underlying conceptual distinction is fundamental and should be accepted by all constitutional theorists. The meaning of a text is one kind of thing; its application is a different kind of thing--no one should dispute this distinction. This distinction has a long history in American legal theory, beginning with Francis Lieber and crystallizing in the work of the great contracts scholar, Arthur Corbin. (31)

   The interpretation-construction distinction interacts with the degree of constitutional underdeterminacy. (32) For almost all originalists, if the constitutional text is determinate with respect to a particular issue or case, all of the important work is done at the interpretation stage (setting aside the role of precedent). Once we know the determinate meaning of the text, then the proper construction follows. But if the text is underdeterminate, allowing more than one possible outcome in a constitutional case, then constitutional construction will be required.

   We can use the phrase "construction zone" (13) to refer to the set of issues with respect to which the original meaning of the constitutional text is underdeterminate. Similarly, the phrase "interpretation zone" (34) can be used to designate the case where the crucial work is done by the communicative content of the constitutional text. The version of PMO developed in my work affirms the interpretation-construction distinction and assumes moderate constitutional underdeterminacy.

   An originalist methodology describes the practices by which the original meaning of the constitutional text can be discovered. Ideally, an originalist methodology will provide a set of best practices that yield results that can be replicated and verified. In Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, (35) I have suggested that original public meaning can best be determined using a combination of three techniques: (1) the method of corpus linguistics, (2) the method of studying the constitutional record, and (3) the method of originalist immersion. Each of these three methods provides a check on the others, allowing for the triangulation of public meaning.

   The debate about the proper relationship between originalism and precedent can be understood in two distinct ways: first, as a debate internal to originalist constitutional theory, and second, as an external critique of originalism. The internal debate is complicated by the theoretical differences among originalists. Likewise, the external critique is complexified by the many different versions of nonoriginalist constitutional theory. Of necessity, this Review simplifies, focusing on PMO as the representative form of originalism and relying on a generic form of nonoriginalist living constitutionalism to stand in for many distinct views.

2. THE PROBLEM OF PRECEDENT FOR ORIGINALIST CONSTITUTIONAL THEORY

   With a brief introduction to PMO on the table, I now turn to a statement of the problem of precedent and originalism.

   1. WHY IS PRECEDENT A PROBLEM FOR ORIGINALISM?

      Precedent is clearly a component of constitutional litigation as currently practiced. The opinions of the Justices and the briefs filed by parties are filled with citations to cases. But originalism seems (on the surface) to suggest that this is a mistake. If the public meaning of the constitutional text requires a certain outcome, then the Constraint Principle suggests that the citation of precedent is superfluous and adherence to authority that is contrary to original meaning is wrong. PMO seems to imply that current practice of precedent in constitutional cases is mistaken: a radical change is required. Some versions of living constitutionalism avoid this problem entirely; for example, common law constitutionalism relies on constraint by precedent as the primary alternative to constraint by the constitutional text.

      Why is this implication of PMO a problem? One problem is very practical: the doctrine of stare decisis is pervasive, and it may be difficult to get judges and Justices to adhere to original meaning when it is inconsistent with precedent. But suppose that it is practically possible to comply with original meaning and overrule all the precedents that would stand in the way. There would still be a question as to whether it would be normatively desirable to do so. As we will see below, there is a range of views about the proper normative alignment of precedent and original meaning. (36) The normative arguments favoring precedent over originalism are too numerous and complex to enumerate here. One especially difficult problem would occur during the transition to originalism: compliance with original meaning may require a wholesale revision in constitutional doctrine on a variety of topics and...