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
If we define an originalist as someone who agrees with Robert Bork that
the only legitimate modality is original understanding, then there is an
obvious problem with adhering to precedents that violate the original
understanding. Indeed, as I have argued elsewhere, the only way of making
sense of
of contemporary customary international
law -- not outdated customary international law.
Francisco Forrest Martin
[Original Message]
From: Sanford Levinson [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Date: 10/15/2003 3:32:02 PM
Subject: Re: Precedent Originalism: Was Scalia, Textualism
This might very well be the position Scalia takes. In his dissent
in Union Gas, he argues:
"Even if I were wrong, however, about the original
meaning of the Constitution, or the assumption adopted by the Eleventh
Amendment, or the structural necessity for federal-question suits against
the
