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 > > > > >> > >> > > >
