In an interesting essay on Law & Liberty, leading originalist scholars John McGinnis and Mike Rappaport address the thorny question of how an originalist Supreme Court should deal with the Court’s many non-originalist precedents. As they sum up the dilemma:

If the Court overrules those precedents, it will in some cases impose enormous costs on those who have relied on the statutes and rights that were believed to be constitutional. But if it leaves them as good law, constitutional law will remain only partially, perhaps only marginally, originalist.

Drawing on a longer article they’ve written (and that I haven’t yet read), McGinnis and Rappaport propose what they call “prospective overruling” as the solution to this dilemma. As I understand it, prospective overruling is a means of applying originalism to statutes to be adopted in the future. In a challenge to an existing statute, the Court might conclude both that the statute is unconstitutional under the original meaning of the constitutional provision at issue and that, in light of existing non-originalist precedent, invalidating that statute would threaten chaos and upset settled expectations. In such an instance, the Court would spell out the originalist doctrine that it would apply to statutes enacted after the Court’s ruling.

McGinnis and Rappaport address two challenges to prospective overruling: first, that it itself flouts original meaning, and, second, that it would have the Court engaging in illegitimate dicta. I won’t try to summarize their responses here but will instead encourage the interested reader to read their full essay.

I have a different concern: I wonder if their solution is too modest and would accomplish too little, as it would apply originalism only to statutes enacted after a Court ruling declares what originalist doctrine is. I see that I expressed a similar concern ten years ago in response to an impressive book they co-authored, Originalism and the Good Constitution. As I asked at the end of my two posts on their book:

In order to energize the amendment process, why not instead recommend that the Court freely overturn non-originalist precedents and, where necessary to prevent disruption, stay the effect of its ruling for X years until the amendment process has been able to run its course? (Any amendment could, of course, be fully retroactive in effect.)

(I’ll add that I don’t think that anything in McGinnis’s and Rappaport’s analysis bears on the Court’s overruling of Roe in Dobbs v. Jackson Women’s Health Organization. As Justice Alito’s majority opinion explained, overruling Roe did not disrupt any legitimate reliance interests.)