The Right Coast

January 19, 2004
More on Originalism and Precedent
By Michael Rappaport

In discussing various posts on originalism and precedent, Stuart Buck recommends an article by Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents. I quite agree with Stuart’s recommendation, having relied on Nelson’s piece in developing my intermediate approach to precedent. Nelson argues in favor of a rule where there is a presumption in favor of following decisions that are merely erroneous, but there is presumption against following decisions that are demonstrably erroneous. His article also shows that this was historically the rule in the early years of the nation. I understand Nelson to be arguing for a rule that places some weight on precedent, although a limited amount of weight.

Nelson has another article that is relevant to originalism and precedent as well, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003). This piece is quite interesting in general, and makes reference to some ideas that can be used to develop another argument why an originalist might favor precedent. The Framers of the Constitution might have thought that the meaning of the Constitution was not entirely clear and therefore would need clarification. They might have thought that it would be best to clarify it through precedent. Since the early precedents would have been reached by people who would have had more knowledge (and perhaps more sympathy) with the original meaning, adhering to those precedents (especially those precedents that were not demonstrably erroneous) would further the original meaning.