Why is it so hard to define intellectual movements in terms of what unites rather than divides them?
In my last three posts, I have discussed how to reconcile the modalities method of interpretation with originalism. To summarize: constitutional theorists, like Professor Pamela Karlan, who argue for modalities, believe that the Constitution should be interpreted according to many factors in addition to or even instead of original meaning. My posts have suggested nevertheless that many of these factors, like text, structure, and even consequences, can be comprehended by originalism, particularly its original methods version. Thus, for instance, text and structure contribute to the original meaning.
But, unlike the modalities approach, original methods originalism can provide a disciplined framework telling us how these factors contribute, making the interpretive process coherent. For example, the benefits or costs of consequences might be taken into account only as determined by the purposes or values derived from the enactment at issue and then only when the text as illuminated by its structure and historical meaning remains unclear.
Another modality defended by Professor Karlan is precedent. However, this factor is fundamentally different from those previously discussed, because precedent does not directly seek evidence as of the meaning of a provision at the time it was passed. It focuses not on a consideration of the meaning of a text, but on a judicial decision in applying that text. Moreover, it is clear that the Supreme Court and lawyers speak of precedent differently from factors contributing directly to meaning. For instance, justices never claim to overrule the text or structure of the Constitution. Only a constitutional amendment can accomplish that feat. But justices can and have acknowledged overruling precedent.
Even if precedent does not operate to directly fix the meaning of the Constitution, originalism still helps integrate its application with others factors that guide interpretation. First, it is a question of the original meaning whether following precedent at the expense of original meaning is permissible. Mike Rappaport and I have argued previously that original Constitution contemplated precedent. We show that judges had an obligation to follow at least a weak version of precedent, because the concept of judicial power in Article III so requires: A judge who did not even consider previous decisions would not be acting like a judge. Beyond that limited constraint, however, precedent was a matter of common law for the judiciary to reformulate and the legislature to revise.
But originalism is helpful even beyond bestowing legitimacy on the consideration of precedent, because understanding its virtues helps formulate the best precedent rules. We can assess when to follow precedent as opposed to following the original meaning only by comparing the benefits of original meaning to the benefits of following precedent. Then we can propose rules that optimize the benefits and minimize the costs of following precedent. Without this kind of comparison, our rules will not integrate the practice of following precedent with the practice of following the meaning of the Constitution and thus not with the other modalities relevant to its meaning.
In the next post, I will consider how this integration should take place.