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Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably be reconciled with original understanding. For example, it is now increasingly acknowledged "that those who wrote and ratified the Fourteenth Amendment believed that it would permit racial segregation in public schools." Consequently, unless they are willing to see it overruled, Brown v. Board of Education presents deep difficulties for those who insist upon original understanding as the only legitimate canon for constitutional adjudication.

Brown will not be overruled, just as the New Deal and the administrative state, both developments whose constitutionality – from an originalist's perspective – is also highly questionable, will not be declared unlawful. Thus, the originalist confronts a fundamental difficulty. Can originalism make sense out of a constitutional order that varies significantly from its core legitimating principle but that cannot be judicially overruled in the name of a return to original understanding? This essay considers whether stare decisis can provide an acceptable ground for preserving the existing constitutional edifice without simultaneously licensing further departures from original understanding.

Part I of this essay defends the claim that there have been significant and irreversible departures from original understanding. In Part II, the essay begins exploring stare decisis as a way of resolving the normative implications of originalism's inability to provide a descriptively plausible account of much of the present constitutional order. Part II argues that originalists must acknowledge that in the process of constitutional adjudication stare decisis plays a very large role. Next, Parts III and IV examine the possible sources and content of a principle that would privilege precedent above original understanding as a rule of decision in constitutional adjudication. Finally, in Parts V and VI, the essay returns to originalism. These parts ask what remains of originalism's normative appeal if stare decisis is invoked to explain and legitimate so much constitutional change. Indeed, what remains of the fundamental idea of a written constitution? In sum, does our Bicentennial Constitution require that we rethink the very meaning of a written constitution? I am forced to conclude that the original understanding must give way in the face of transformative or longstanding precedent, a conclusion that in turn may make inevitable the unsettling acknowledgement that originalism and stare decisis themselves are but two among several means of maintaining political stability and continuity in society.


Constitutional Law | Law