Editing Precedent (section)

===Originalism===
[[Originalism]] is an approach to interpretation of a legal text in which controlling weight is given to the intent of the original authors (at least the intent as inferred by a modern judge). In contrast, a non-originalist looks at other cues to meaning, including the current meaning of the words, the pattern and trend of other judicial decisions, changing context and improved scientific understanding, observation of practical outcomes and "what works", contemporary standards of justice, and ''stare decisis''. Both are directed at ''interpreting'' the text, not changing it—interpretation is the process of resolving ambiguity and choosing from among possible meanings, not changing the text.

The two approaches look at different sets of underlying facts that may or may not point in the same direction—''stare decisis'' gives most weight to the newest understanding of a legal text, while originalism gives most weight to the oldest. While they do not necessarily reach different results in every case, the two approaches are in direct tension. Originalists such as Justice [[Antonin Scalia]] argue that "''Stare decisis'' is not usually a doctrine used in [[civil law (legal system)|civil law]] systems, because it violates the principle that only the legislature may make law."<ref>''A Matter of Interpretation''.{{full citation needed|date=May 2020}}</ref> Justice Scalia argues that America is a civil law nation, not a [[Common law#Disambiguate civil law|common law]] nation. By principle, originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the originalist's own interpretation of the [[US Constitution|Constitutional]] text or inferences of original intent (even in situations where there is no original source statement of that original intent). However, there is still room within an originalist paradigm for ''stare decisis''; whenever the [[plain meaning rule|plain meaning]] of the text has alternative constructions, past precedent is generally considered a valid guide, with the qualifier being that it cannot change what the text actually says.

Originalists vary in the degree to which they defer to precedent. In his confirmation hearings, Justice [[Clarence Thomas]] answered a question from Senator [[Strom Thurmond]], qualifying his willingness to change precedent in this way:

{{Blockquote|I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case incorrect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case.|<ref>[[Clarence Thomas|Thomas, Clarence]] (1991). ''[U.S.] Senate Confirmation Hearings.'' qtd. by Jan Crawford Greenburg on [https://www.pbs.org/newshour/forum/june03/scotus_forum2.html PBS] (June 2003) Accessed 8 January 2007 UTC.</ref>}}

Possibly he has changed his mind, or there are a very large body of cases which merit "the additional step" of ignoring the doctrine; according to Scalia, "[[Clarence Thomas]] doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let's get it right."<ref>{{cite journal | author=Ringel, Jonathan | title= The Bombshell in the Clarence Thomas Biography | publisher=Fulton County Daily Report | year=2004 | url=http://www.law.com/jsp/article.jsp?id=1090180289132 | author-link=Jonathan Ringel }}</ref>

Caleb Nelson, a former clerk for Justice Thomas and law professor at the University of Virginia, has elaborated on the role of ''stare decisis'' in originalist jurisprudence:

{{Blockquote|American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision.&nbsp;... [T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedent that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law.&nbsp;... Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations".&nbsp;... To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedent that misinterpreted it.&nbsp;... Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions.&nbsp;... Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedent. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.<ref>{{cite journal |last=Nelson |first=Caleb |title=Stare Decisis and Demonstrably Erroneous Precedent |journal=Virginia Law Review |volume=87 |issue=1 |pages=1–84 | year=2001 | author-link=Caleb Nelson |doi=10.2307/1073894 |jstor=1073894 }}</ref>}}