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Originalism and the Invisible Constitution
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federal constitutional law unless the political question doctrine applies. This
practice would require lower court judges and other officials to defer to the
Court on questions of constitutional interpretation – even if they believed that
the Court had erred. Similarly, the current Supreme Court could defer to its
prior self; adopting the doctrine of horizontal stare decisis structures constitu-
tional interpretation. So long as this institutional structure is consistent with
the original meaning of the Constitution, this option is available to original-
ists. Whether it is the best option depends on a variety of complex institutional
questions – effects on stability, efficacy in maintaining original meaning, and
so forth.
Precedent might also play a role in constitutional construction. For orig-
inalists who embrace the construction zone, nonoriginalist considerations
inevitably play a role in constitutional practice when the communicative
content of the constitutional text is vague or irreducibly ambiguous. In the
construction zone, both vertical and horizontal stare decisis could structure
constitutional doctrine – by definition, the construction zone is the space in
which the original meaning of the Constitution underdetermines the legal
content of constitutional doctrine.
It should be uncontroversial that originalists can embrace an institu-
tional role for precedent so long as that role is consistent with the Constraint
Principle. There is, however, a question about the proper role of precedent
that is bound to be controversial. Can originalists accept precedents that are
both (1) contrary to original meaning, and (2) decided on the basis of nonorig-
inalist concerns? Although some originalists have argued that Brown v. Board
can be justified on originalist grounds, suppose that Brown is inconsistent with
original meaning and that the opinion in Brown cannot be fairly read as a good
faith attempt to reach a decision consistent with original meaning.
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Under
these circumstances, would originalists be compelled to argue that Brown
should be reversed? Or consider the New Deal era precedents that expanded
national legislative power and provided the constitutional foundations for the
exercise of legislative, executive, and judicial powers by administrative agen-
cies. Assuming that these decisions are inconsistent with original meaning and
that their reasoning cannot be characterized as a good faith attempt to respect
original meaning, must originalists argue that they should be overruled?
Justice Scalia has argued for “faint-hearted originalism” – which recon-
ciles originalism to nonoriginalist precedents on pragmatic grounds.
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Randy
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See Michael W. McConnell, “The Originalist Case for Brown v. Board of Education” (1995–6)
19 Harvard Journal of Law and Public Policy 457.
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Antonin Scalia, “Originalism: The Lesser Evil” (1988–9) 57 University of Cincinnati Law
Review 849.
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Lawrence B. Solum
Barnett has forcefully criticized Scalia’s argument.
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This theoretical disagree-
ment can be characterized in terms of the Constraint Principle. Originalists
differ about the precise contours of the Constraint Principle. Some, like
Scalia, adopt versions of the Constraint Principle with defeasibility condi-
tions that are broad in scope. Others, like Barnett, believe in relatively narrow
defeasibility conditions – although every originalist is likely to accept that orig-
inal meaning must give way in some cases: the Constitution is not a suicide
pact.
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When defeasibility conditions come into play, the resulting doctrines
are constitutional constructions: legal content of constitutional doctrine that
is inconsistent with the communicative content of the constitutional text. The
question whether originalists should adopt broad or narrow defeasibility con-
ditions is a complex one: the answer depends on the underlying justifications
for originalism, broader issues in political philosophy, and empirical questions
about institutional design. These topics are important, but they cannot be
resolved on this occasion and are likely to be the subject of ongoing dispute
among originalists.
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