What should originalists do about precedent? That was the subject of week three of the originalism course I am co-teaching with Eric Posner, and he has some thoughts here:
If they respect it, then the original meaning will be lost as a result of erroneous or non-originalist decisions that must be obeyed. If they disregard it, then Supreme Court doctrine is always up for grabs, subject to the latest historical scholarship or good-faith judicial disagreement (as illustrated by the competing Heller opinions). One can imagine intermediate approaches: for example, defer only to good originalist precedents, or defer only when a precedent has become really really entrenched. But while such approaches may delay the eventual disappearance of original meaning behind the encrustation of subsequent opinions, they cannot stop it, sooner or later. Our readings … provide no way out that I can see. … Originalism has an expiration date.
It seems to me that this claim is not obviously true, and also not particularly problematic if it is true.
On the first, it is not clear why all intermediate theories of precedent will lead to 100% encrustation or the “disappearance” of original meaning. For example, if the first precedents on a question are consistent with the original meaning, then precedent and originalism point in the same direction and originalism is preserved. Or one could have a theory of precedent that still allows precedents to be overruled some of the time. There is no particular reason for that to lead to encrustation either. Indeed, in many ways the history of constitutional law is the history of eventually overruling precedents. Maybe it is the precedents, not originalism, that have the expiration date.
In any event, suppose that it is true that precedent means that originalism becomes irrelevant over time, at least so long as the constitutional text remains the same. It is not clear why that is a bad thing. Assuming that one is a pro-precedent originalist, one has already reconciled oneself to the fact that originalism permits precedent as a rule of decision. If originalism permits itself to be shingled with precedents, then so be it.
The more interesting question is why precedent is so often put forward as if it were a special problem for originalism. Unless one’s substantive constitutional theory is based directly on precedent (which is true of my colleague David Strauss, but almost nobody else), all theories will face a similar dilemma. The more one adheres to the theory of precedent, the more the substantive theory is lost. The more one ignores precedent, the more one will be accused of placing things “up for grabs.” Indeed, one strength of originalism is that it actually has the resources to answer that question internally (by asking what the original theory of precedent was).
Precedent is an interesting question for originalism, and there is no consensus on the answer, but none of the plausible answers are particularly problematic.