When Should the Originalist Respect Precedent? [No. 86]
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When Should the Originalist Respect Precedent? [No. 86]


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’s
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.

4 Comments

  • Shane Lackey

    The Federal Reserve is Unconstitutional …
    The supreme Courts opinion can be summarily dismissed December 23 1913 forward in terms of The Rule of Law as it can not represent " The Law " while their paychecks cashing is a conflict of the public's interest .

    The Federal Reserve is a breach of trust on it's face . The Supreme Court is forbidden from ruling against it … Rendering it's opinion on the Rule of of Law Null and void .

    Sweep the Bench , it is an abomination in Toto .

  • Dustin Hedden

    I'm beginning to associate the word "precedent" with "red tape"

    That is that some really bad decisions were made and then cemented by layers of ruling; a useful tactic for a faction to overcome any "hiccups" in their electoral succession.

    Other than in obvious cases of precedent actually doing its job of quickly answering questions that would otherwise get tied up in litigation for God knows how long

  • The Hamster Wheel

    This is a serious problem and has given the Judiciary too much power. In fact, the 3rd branch now runs like mafia and its Sicilian code. Our courts are full of thugs in black robes.

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