Stare Decisis in an Originalist Congress

The concern here is with the normative status of legislative precedents for an originalist Congress: Should an originalist legislator give any weight to previous legislative constitutional judgments? This Note does not attempt to articulate the specific criteria an originalist legislator (or judge, for that matter) should use in deciding whether to retain a particular precedent. That question is a distinct inquiry for another day. Part I briefly reviews the literature on originalist extrajudicial constitutional interpretation as well as the scholarship on legislative stare decisis. Part II examines five common arguments for adherence to precedent in a judicial setting and analyzes their salience in an originalist legislative context. Finally, the Conclusion looks back on the analysis in Part II and offers a view about the relevance of stare decisis for an originalist Congress that seeks to take constitutional interpretation seriously. This Note argues that stare decisis matters a great deal less for an originalist Congress than it does for the Supreme Court. Although that answer might not surprise many, what is surprising is that there remain good arguments for giving at least a modicum of respect to precedent in the originalist legislative context. As it is with originalism generally, so it is with legislative precedents: “We will have the dead at our councils.