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When Should the Originalist Respect Precedent?

Is precedent always opposed to Originalism? Are there certain cases or issues when precedent is helpful or imperative? Professor John McGinnis posits that the Originalist should have a couple of simple, clear rules regarding the use of precedent. Professor McGinnis explains that while precedent is sometimes necessary, those situations ought to be an exception to Originalist interpretation and not the default rule. https://youtube.com/watch?v=Lxyz8_sJUZk


Precedent poses an enormous practical issue for originalism. The reason is that the supreme court reporters are full of precedents that may well not be consistent with originalism. So one rule would be this, that we should not revisit a precedent when there's substantial evidence that had the supreme court had not decided that precedent, we'd have a constitutional amendment to implement it. That's sort of the simplest rule. Let's take a famous case called the Legal Tender Cases. The question in the 1870s was whether or not the federal government could print bills because the constitution says the federal government can coin money. It doesn't actually give by its plain terms, the ability to print bills. It seems to me unlikely under any theory of precedent that it would be plausible to overrule those cases today and suddenly make dollar bills valueless. Another rule would be a rule that if going back to the original meaning of the constitution would create enormous costs. So one example of that might be some of the commerce clause decisions. We have a now a vast number of government agencies that are responsible only on the premise that the federal government could regulate manufacture and agriculture. As a very famous originalist suggested, to go back on those cases would be to throw the government into chaos. But note that these are exceptions to the idea that one should try to follow the originalist meaning. Too many times the court has a view that so long as the precedent is workable, it hasn't been eroded by subsequent case law, and is not obviously wrong, often not defined by originalism but defined by its consistency with the rest of the law, we should retain that precedent. If we have that view of precedent, really the constitution will get farther and farther away. That seems to me very problematic, so we should have a very few clear rules of precedent that should protect precedent where the costs are really very substantial or we would have had the rule anyway because of the passage of time.

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