Traditionalist Originalism


By Professor Marc O. DeGirolami I was surprised, in reading the probing responses to my essay, that the prospects for integrating originalism and stare decisis may be a little better than I had thought. I will focus in this reply on one strategy of integration cobbled together from Professor Wurman’s and Professor Barnett’s papers. I will then clarify some misapprehensions about my own views, and here my remarks will be directed primarily to Professor Merriam and Professor Barnett.

Traditionalist Originalism

Toward the end of my essay, I suggested that the magnetic pull of stare decisis is likely to be strongest when courts confront precedents of great age, endurance, and continuity. “Such precedents are,” I added, “likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning.” I pointed to evidence that this magnetic dynamic is at work in some of the justices’ recent treatments of stare decisis—including those justices most committed to originalism. I argued that when such enduring and concentrated precedents are also connected to the deep-rooted political and cultural practices of the American people, then the attraction of stare decisis approaches its zenith.

The interventions of Professors Wurman and Barnett suggest that there may be partial agreement on some of these points. Professor Wurman may agree with all of them. He points out, correctly in my view, that the stability promoted by stare decisis and reflected in the “artificial reason” of the law is exemplified in “a chain of decisions over time” reflecting enduring agreement about the true—or at least, a permissible—meaning of the Constitution. Professor Barnett writes that any attempt to integrate originalism and stare decisis must acknowledge the originalist “imperative” of bringing “the precedents of the Supreme Court gradually into alignment with the original meaning” of the Constitution.[1] Judges, he says, should for epistemic reasons accept good-faith originalist precedents until “knowledgeable scholars” doing the latest originalist research weigh in.

Here I see things somewhat differently even from within an originalist framework. Originalists moved by Professor Barnett’s imperative would be well-advised to attend to the difference between, on the one hand, an ancient and enduring cluster of precedents reflecting practices extending back to the founding (and even before it) and, on the other, a comparatively recent, one-off, “unmoored” (as Justice Thomas put it) decision that runs counter to such enduring practices. This distinction is important for at least two reasons, one theoretical and the other practical.

First, at least in cases where meaning is uncertain, old and enduring precedential lines carry greater epistemic weight about those meanings than do recent and isolated doctrinal innovations. Precedents proximate in time to the founding and repeatedly entrenched thereafter for centuries in subsequent doctrine and practice are more powerful evidence of permissible, even if not mandated, textual meanings, than precedents that do not share these qualities. True, they are not conclusive evidence. An ancient and enduring line of doctrine may have gotten it wrong, and wrong repeatedly, from the start. But for the many constitutional provisions where meaning is uncertain, and for situations in which there may be several interpretations that are not “demonstrably erroneous,” originalists concerned about epistemic warrant ought to grant such precedential lines a presumption of veracity.

Consider the bizarre and hubristic alternative: a world where early judicial interpretations, and the lasting and concentrated lines of precedent generated by them, are given no respect at all, or are even presumed to be wrong, and it is only the latest-arriving “knowledgeable scholars,” so much more distant in time and legal culture, who can see clearly and are owed epistemic deference. Judges evaluating practices close in time to the founding have access and insight that scholars who research original meaning today should acknowledge and respect. They are much more likely than we are to share in the political and cultural ethos of their own time. And where an early understanding has endured and been repeatedly reaffirmed for generations, thereby increasing its law-like properties, the respect we owe it likewise should increase.

Second, the justices whom originalists admire most do tend to invest ancient and enduring precedential lines with qualitatively different stare decisis force than recent, novel, and unmoored precedents. As I indicated in my first essay, this is something that judges inclined toward originalism have appreciated better than their scholar counterparts. I was therefore puzzled by Professor Barnett’s claim that “some justices” today may be eager to overrule D.C. v. Heller and Citizens United v. FEC, just as other justices of the Warren and Burger Court eras swept away ancient and longstanding precedents that obstructed their progressive political aims. That may be true, but I would not have thought that originalists would take these justices to be their models, let alone to vindicate Professor Barnett’s argument that Supreme Court justices “must be free” to vote as they like whenever they like, stare decisis notwithstanding.

Against Professor Barnett’s claim that Supreme Court justices “never have” treated stare decisis as especially powerful in the case of old and enduring precedents, I point back to my initial essay, where I described the considerable “buy-in” that already exists from the justices whom originalists admire and would like to win over—including Justice Thomas, Justice Gorsuch, and Justice Alito in their respective opinions in GambleMesa, and Ramos. If the Chief Justice can be shown the error of his “insidious” conception of stare decisis in June Medical, as Professor Wurman puts it, then perhaps he, too, might be persuaded to buy in.

In highlighting age, deep roots in common practice, and enduring continuity—that is, in emphasizing the jurisprudential traditionalism of constitutional law—these justices are telling originalist scholars something important about the virtue of stability in constitutional law, and about its nature. As Judge Amy Coney Barrett has indicated, Justice Scalia likewise long defended the “stare decisis” of American political and cultural traditions against the doctrinal innovations of judges (and scholars) entirely disconnected from, and sometimes even disdainful of, those traditions. “In an important sense,” Judge Barrett argues, “originalism can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.” Justice Scalia is no longer on the Court, of course. But others may come who have been influenced by his legacy. Originalists have reasons to listen to what these judges are telling them.

Professor Barnett is right, then, that integrating originalism and stare decisis will require accepting the “imperative” of gradual doctrinal alignment in accordance with original meaning. That will be stare decisis’ concession. But integration will require a concession from originalism, too—and something more than what Professor Barnett is offering at the moment. Originalists will need to acknowledge the traditionalism of constitutional law and that precedential age, endurance, and connection to common practice matter in constitutional law. They matter both for epistemic, interpretive reasons that ought to be of interest to originalists and for the stability that ought to be recognized by originalists and nonoriginalists alike as a legal virtue.

My Own Views

My essay was an effort to grapple with what I take to be a problem for originalism in light of the gap between originalism as an interpretive aspiration and originalism as an adjudicative reality. It was not intended to set out my own views about constitutional interpretation and adjudication, something I have begun to do in other work. Still, there are connections between my diagnosis of the difficulties stare decisis poses for originalism and the approach to constitutional interpretation I have described and defended elsewhere. And as Professors Merriam and Barnett have remarked on my views in their responses, I reserve a few words of reply on that front.

Professor Merriam understands stare decisis differently than I do. I suspect that at least some of this is due to our different descriptive and evaluative aims. He thinks that the draw of stare decisis is most powerful when the precedent adhered to is recent and unmoored from longstanding doctrine, so long as the judge doing the adhering disagrees with it. The Chief Justice’s concurrence in June Medical is, for him, a model of stare decisis. As a description of stare decisis “working on the Supreme Court” as it has (regrettably, I think) come to be understood by political scientists, he may well be correct. But I wanted in my essay to discuss the virtues promoted by stare decisis. I emphasized the values of endurance and stability that stare decisis serves. From that perspective, stare decisis is only “working on the Supreme Court” if it is fostering the legal virtues that render it worth having at all. I do not see that dynamic in the Chief Justice’s June Medical concurrence. As for Professor Merriam’s claim that the Chief Justice erred in June Medical “not because [he] got the meaning of stare decisis wrong . . . but because [he] got the meaning of tradition—and the meaning of personhood—wrong,” why is it not more accurate to say that he got all three wrong?

Even more puzzling is Professor Merriam’s ascription to me of a view of stare decisis that I do not hold—indeed, that verges on the opposite of my view. He writes that my “conception of stare decisis is about consistency of underlying principles, not consistency of adjudicated facts or rules.” So far as I can see, the only evidence for this assertion is that I wrote that stare decisis is about picking up the “legal thread connecting a long and lasting line of cases.” I did not use the word “principles,” but Professor Merriam reads “principles” where I said “thread.” But threads are objects in the world, not abstractions. The threads of legal doctrine are made from the raw fabric of political and cultural practices, as I have been at pains to emphasize time and again. In criticizing the Dworkinian “consistency of principles” as constituting the essence of stare decisis, Professor Merriam certainly has some target in mind. But it is not me.

Finally, a brief word on Professor Barnett’s remark that I may have “missed th[e] implication” that my traditionalist approach is akin to Professor David Strauss’s common-law constitutionalism. As it happens, I have not missed it. While there may be some surface similarities between our views, they are very different. Professor Strauss has argued for a “rational traditionalism” that validates the constitutionality of “relatively new practices” and “precedents” so long as they have achieved general acceptance and are justified on the basis of what Strauss takes to be an enlightened rationalism. My view is instead much closer to the original conception of the common law. At common law, precedents were evidence of the enduring traditions and customs of the people. That was their point. It is what made the law common. The modern view of the common law, as in Professor Strauss’s account, that judges have a kind of vanguardist, rationalist, lawmaking power was never a historical justification for stare decisis. It was the union of precedent and tradition over time that gave stare decisis its real power. Those who would incorporate a healthy understanding of stare decisis into constitutional law should follow this example.

My thanks to all three gentlemen for their learned and thoughtful responses.

[1] As in my lead essay, I take no position on the validity of original intent in this reply and set its dispute with original meaning to the side. I assume for purposes of argument that I am addressing original public meaning originalists. Professor Merriam chides me for this, but I think the assumption is warranted in light of the commitments of my other respondents. Sometimes it is worthwhile to try to meet one’s interlocutors on their own ground.

Marc O. DeGirolami is the Cary Fields Professor of Law and co-directs the Center for Law and Religion at St. John’s Law. This article published originally at Law & Liberty on September 30, 2020.