Original Meaning and the Precedent Fallback

There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution's original meaning should yield to contrary precedent.This Article considers the role of judicial precedent not when it conflicts with the Constitution's original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional adjudication. The strengths and weaknesses of the originalist methodology take on a unique valence when a primary commitment to original meaning is coupled with a fallback rule of deference to precedent. Even when the Constitution's original meaning leaves multiple options available, falling back on precedent can channel judicial discretion and contribute to a stable, impersonal framework of constitutional law.I. IntroductionThe status of judicial precedent has posed a conceptual challenge for originalism. On some accounts, the originalist methodology leaves little room for fidelity to the pronouncements of prior courts.1 After all, how can a theory that is motivated by the primacy of text and historical understandings permit deference to judicial gloss?2The apparent tension between originalism and precedent has elicited a robust scholarly response. Recent years have witnessed notable attempts to demonstrate that adherence to precedent, even flawed precedent, is compatible with a commitment to the Constitution's original meaning under certain circumstances.* * 3 According to these arguments, precedent is not simply a conceptual obstacle that justifies an exception to originalism for the sake of practicality.4 Rather, precedent can function as an intrinsic and coherent part of originalist theory.Scholarly treatments of the operation of precedent within originalism commonly feature situations of conflict between judicial case law and the Constitution's original meaning.5 This emphasis is understandable, for it reflects the importance of determining whether originalism can accommodate widely lauded precedents even if they represent deviations from the originalist Constitution.6 Yet there is another set of questions relating to cases in which the Constitution's original meaning is uncertain. For example: How should courts respond if the Constitution's text, structure, and historical context leave substantial doubt about whether corporate electioneering is part of the "freedom of speech" protected by the First Amendment?7 What if there is insufficient evidence to determine whether the "right... to keep and bear Arms" applies to individuals?8 Or if there is no reliable way to figure out the application of the jury-trial right to the imposition of mandatory-minimum sentences?9 In situations like these, is there a meaningful role for judicial precedent to play? It is this aspect of the relationship between originalism and stare decisis that I wish to consider: the function of precedent when the Constitution's original meaning cannot confidently be discerned.10Focusing on situations of constitutional uncertainty underscores the fact that deference to precedent need not come at the expense of respecting the Constitution's original meaning.* 11 Evidence of original meaning will sometimes be inadequate to provide a clear answer to a disputed question.12 Moreover, vague constitutional terms, even when understood in historical context, will sometimes permit a range of outcomes. I suggest that in such situations, originalists may consider stare decisis as a fallback rule. Upon finding that the Constitution's original meaning is insufficient to resolve a dispute, courts can adopt a presumption of deference to judicial precedent. …