Might not a judge--originalist or otherwise--simply conclude that stare
decisis has independent value, in terms of legal stability, reliance,
etc.?  In this respect, is the originalist judge necessarily different
from, say, a judge who believes that the Constitution should be
interpreted in accordance with liberal philosophy, e.g., as understood
by John Rawls?  Might not either judge conclude that a mistaken decision
should nonetheless be honored for reasons apart from the interpretative
theory that the judge would apply if precedent were not a factor?

Dan Conkle
**************************************
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**************************************



-----Original Message-----
From: Larry Solum [mailto:[EMAIL PROTECTED]
Sent: Wednesday, October 15, 2003 1:39 PM
To: [EMAIL PROTECTED]
Subject: Precedent & Originalism: Was Scalia, Textualism, and Printz


It seems to me that the question for originalists is WHETHER a "judicial
decision is a superceding text adopted through a legitimate process."
This
question has at least two dimensions, one functional and the other
normative.

The functional question is whether precedents are to be treated as
superceding, and if so, how, when they are out of line with the plain
meaning
of the constitutional text or its original meaning.  Originalists may
divide
on precisely this point.  On the one hand, some originalists may argue
that
adherence to precedent serves the same rule of law values as does
originalism
and textualism.  On the other hand, other originalists may argue that
precedents which depart from the text or original meaning should not be
afforded precedential effect.  A fully specified theory of originalism
must
have an answer to the functional question.

The normative question concerns the political morality of treating
precedents
as authoritative even when they depart from text or original meaning.
Different versions of originalism will take different positions on the
normative question as well.  Thus, popular-sovereignty originalists
might take
the position that judicial decisions that are not authorized by "We the
People," are illegitimate, and hence not binding.  Other
originalists/textualists emphasize rule-of-law values as the normative
foundation of originalism, and these originalists may find it easier to
swallow Professor Earl Maltz's position: "A judicial decision is a
superceding
text adopted through a legitimate process (even if the mode of reasoning
is
not what I would choose)."

It goes without saying that the normative and functional questions are
closely
connected, but they are not the same question.  Originalist/texutalists
with
similar normative positions might endorse different answers at the
functional
level, and vice versa.

Larry

Lawrence Solum
University of San Diego
http://lsolum.blogspot.com

Quoting earl maltz <[EMAIL PROTECTED]>:

> I must be getting slow in my old age, but I don't see how precedent
poses a
> greater problem for originalists than for those who take other views.
A
> judicial decision is a superceding text adopted through a legitimate
> process (even if the mode of reasoning is not what I would choose).
It is
> thus analogous to (although different from) a legitimately-adopted
> constitutional amendment.
>
> At 12:23 PM 10/15/2003 -0500, Richard wrote:
>
>   The question of the authority of
> >precedent is obviously a significant challenge for originalists, but
Scalia
> >does address this issue in a number of places (including in his
dissent in
> >Union Gas, if I remember correctly).
> >
> >Richard Dougherty
> >University of Dallas
> >
>
> >>
> >>
> >
>

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