Abstract
Whatever one's theory of constitutional interpretation, a theory of stare decisis, poured on top and mixed in with it, always corrupts the original theory. If one is an originalist - that is, if one believes that the Constitution should be understood and applied in accordance with the objective meaning the words and phrases would have had to an informed general public at the time of their adoption 1 - then stare decisis, understood as a theory of adhering to prior judicial precedents that are contrary to the original public meaning, is completely irreconcilable with originalism. Stare decisis contradicts the premise of originalism - that it is the original meaning of the words of the text, and not anything else, that controls constitutional interpretation. To whatever extent precedents inconsistent with original meaning are accepted as controlling (whether sometimes and to some extent, or always and absolutely), such acceptance undermines - even refutes - the premises that are supposed to justify originalism. 2 If one is a non-originalist, pragmatist, or otherwise outcome-driven "interpreter" of the Constitution - that is, if one believes that the Constitution should be interpreted in such a manner as to produce justice, good outcomes, or workable and fair solutions to social and political problems, and not be inhibited by the constraints of constitutional text, structure, and history - stare decisis corrupts and undermines such an interpretive theory, too. After all, why should an interpreter be bound by precedents that stand in the ...