"Originalism and Stare Decisis in the Lower Courts"

Now published in the NYU Journal of Law & Liberty

|The Volokh Conspiracy |

The NYU Journal of Law & Liberty has published the final version of my new article, "Originalism and Stare Decisis in the Lower Courts." I hope this piece is of interest to many lower court judges who are now routinely engaging with the original meaning of the Constitution.

Here is the abstract:

The tension between originalism and stare decisis is well known. Many of the Supreme Court's most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court's unique status, which is perched atop our judiciary, affords its members leeway to make either decision.

Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare.

An originalist circuit judge would only have free jurisprudential rein in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process.

In short, it's tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist.



NEXT: Judge Bumatay's Originalist Eighth Amendment dissent from denial of rehearing en banc

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  1. I like you cabin your argument by referencing precedent as the vehicle that provides lower court judges an opportunity to side-step precedent. Even better, you refer to “the Garza framework,” by which you appear to mean the dissenting opinion of three judges. But, explicitly saying “the dissent from Garza” is obviously less effective than saying “the Garza framework.” It’s very clever. Nicely done.

  2. Let me guess. Part II, on how a lower-court judge can be an originalist, begins:

    First, add to your law degree a PhD, specializing in colonial- and founding-era history.

    No? Too bad. No legitimacy for your originalism.

    1. Right, because without that all-important credential, federal court judges are completely incapable of bringing their specific knowledge to bear in any particular case. As a bonus for you, since no Supreme Court justices have that credential, I guess we get the “living Constitution” you so adore by default.

  3. Even in a case of first impression, a trial court’s job is to analogize to existing doctrines.

  4. Does your book mention your New York Times op-Ed?

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  6. “Here, the circuit judge will often have to do all of her own originalist research….”

    How woke of you to use the feminine pronoun to refer generally to a person, contrary to centuries of precedent. So much for originalism.

  7. Originalism . . . still younger — and less popular — than Kim Kardashian.

    I will become concerned about the long-term influence of originalism when conservatives prove they have perfected a machine that mass-produces cranky, old, white, poorly educated, stale-thinking, easily frightened, southern, white, rural males. Until then, I am more interested in the likely trajectory of American jurisprudence, which customarily involves progress made against the wishes and efforts of conservatives.

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