Lower Court Originalism

Abstract

Originalism is among the most significant and contentious topics in all of constitutional law and has generated a massive literature addressing almost every aspect of the theory. But curiously absent from this literature is any sustained consideration of the distinctive role of lower courts as expositors of constitutional meaning and the particular challenges that such courts may confront in attempting to incorporate originalist interpretive methods into their own decisionmaking. Like most constitutional theories, originalism has tended to focus myopically on a select handful of decisionmakers—paradigmatically, the Justices of the Supreme Court—as the principal expositors of constitutional meaning. While this perspective unquestionably has value, it ignores the adjudicative context in which the vast majority of litigated constitutional questions are finally resolved.

The question of whether and to what extent lower courts should use originalism in their own decisionmaking is hardly an insignificant one. Although lower courts are strictly bound to follow controlling Supreme Court precedent, these strictures leave open a wide domain in which the choice between originalism and other modes of decisionmaking might plausibly affect the content of lower courts’ decisions. But lower courts face a number of institutional limitations and challenges that do not directly confront the Supreme Court, including greater time and resource constraints and the inability to overrule directly controlling nonoriginalist precedents.

This Article aims to examine lower court originalism by looking to a set of values commonly associated with our system of vertical stare decisis—including uniformity, accuracy, efficiency, percolation, and legitimacy—as well as a set of values commonly associated with originalism itself—including popular sovereignty, judicial restraint, desirable results, and positive law. In general, the use of originalism by lower court judges is likely to be more costly and error–prone than similar decisionmaking by the Supreme Court, while being less likely to directly further certain of the values most closely associated with originalism. This assessment does not necessarily suggest that lower courts should never seek to incorporate originalist methods into their own decisionmaking. But it does suggest the need for a cautious and thoughtful approach that takes proper account of the institutional limitations of lower court decisionmaking.

These challenges are hardly unique to originalism. Similar challenges confront virtually all constitutional theories, particularly those that, like originalism, ask lower courts to look beyond the relatively familiar tools of case-focused, doctrinal reasoning.