92 Notre Dame L. Rev. 1921 (2016-2017)
Originalism and Stare Decisis

handle is hein.journals/tndl92 and id is 1971 raw text is: 









ORIGINALISM AND STARE DECISIS


                              Amy Coney Barrett*

                              INTRODUCTION

     Justice Scalia was the public face of modern   originalism. Originalism
 maintains both that constitutional text means what  it did at the time it was
 ratified and that this original public meaning is authoritative. This theory
 stands in contrast to those that treat the Constitution's meaning as suscepti-
 ble to evolution over time. For an originalist, the meaning of the text is fixed
 so long as it is discoverable.
     The  claim that the original public meaning of constitutional text consti-
 tutes law is in some tension with the doctrine of stare decisis. Stare decisis is
 a sensible rule because, among other things, it protects the reliance interests
 of those who  have structured  their affairs in accordance with the Court's
 existing cases. But what happens when  precedent  conflicts with the original
 meaning  of the text? IfJustice Scalia is correct that the original public mean-
 ing is authoritative, why is the Court justified in departing from it in the
 name  of a judicial policy like stare decisis? The logic of originalism might
 lead to some unpalatable results. For example, if the original meaning of the
 Constitution's Gold Clauses prohibits the use of paper money, is an original-
 ist bound to plunge  the economy   into ruin? Some   constitutional theorists
 treat precedent as capable of supplementing and  even supplanting the text's
 historical meaning; for them,  choosing  to follow precedent  that diverges
 from the original meaning  is relatively unproblematic. Originalists, in con-
 trast, have difficulty identifying a principled justification for following such
 precedent, even when  the consequences  of overruling it would be extraordi-
 narily disruptive.
     Faced  with this problem, Justice Scalia famously described himself as a
faint-hearted originalist who would abandon   the historical meaning when
following it was intolerable.' He claimed  that stare decisis is not part of my

   @   2017 Amy Coney Barrett. Individuals and nonprofit institutions may reproduce
and distribute copies of this Essay in any format at or below cost, for educational purposes,
so long as each copy identifies the author, provides a citation to the Notre Dame Law Review,
and includes this provision in the copyright notice.
   *   Diane and M.O. Miller, II Research Chair in Law, Notre Dame Law School. This
Essay was prepared for the Notre Dame Law Review's federal courts symposium on the
jurisprudence of Justice Scalia. Thanks to all participants for discussing and thereby
sharpening the argument developed in this contribution.
   1  Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REv. 849, 864 (1989) (I
hasten to confess that in a crunch I may prove a faint-hearted originalist.). Justice Scalia


1921

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