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Does Precedent Make Originalist Jurisprudence Impossible?

Professor Gary Lawson explains that cases that can be decided on a purely originalist basis are few and far between. Most issues have years worth of precedents that have to be considered and most judges will take those into consideration. This is why we don’t see a dramatic shift in decisions even when originalist judges are added to a court. https://youtube.com/watch?v=MW_sA805f1Q


Suppose that you really want to be an originalist judge. You want to decide cases in accordance with the original meaning of the constitution. But you also believe in the conventional account of precedent. Whatever that turns out to be. However you ultimately describe that conventional account, it treats large masses of prior decisions as essentially unchallengeable starting points. If, hypothetically, lots and lots of those precedents, one might even say most of those precedents or virtually all of the precedents, are themselves not originalist, that is just viewed as interpretations of the constitution, they don't match up to the actual communicative meaning of the instrument. But you're taking all of those as your starting point, spending almost all of your time arguing not about the meaning of the constitution, but about the meaning of the prior judicial decisions, what is there left of originalism? The short answer is not very much which is why you don't see dramatic swings in jurisprudence even when the composition of the Court changes. Originalism comes into play, in this setting, in a relatively modest number of cases. Every once in a while, as in the Heller decision from a decade ago, where issues about the second amendment came up, essentially for the first time. The methodology that you choose to approach those questions of first impression might make a difference. Every once in a while, as in Crawford vs. Washington, in 2004, when the Supreme Court dramatically remade its jurisprudence under the confrontation clause of the sixth amendment. Original meaning will be pulled out and used explicitly to overrule a large body of non-originalist precedent. Those are exceptional cases. Those don't happen very often. This is why the stakes about the interpretative methodology on the Court tend not to be nearly as great as people think. This is why Elena Kagan, who I admire enormously and have for a long time, can say we are all originalists now. And not being drummed out of all of her social circles. Even if that's true, it's not gonna change a lot of results because most of the time, it's not originalism that's driving the boat. What's driving the boat is interpretation of prior precedents. So is originalism completely irrelevant as an interpretative methodology? No. There are those cases every once in a while where on the margin it will make a difference. That's not nothing. But it's not everything either.

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