I wasn't suggesting that precedent necessarily poses a greater problem for originalists. My comment was in reference to the charge of inconsistency on Scalia's part, a charge leveled against him in the Matter of Interpretation exchange, and a difficulty Sandy raises in the article I referenced. Larry Tribe, for instance, says Scalia is a living constitutionalist, citing a number of cases where he seems to stray from textualism (including flag-burning). Scalia's response, in part, is that a justice has to consider precedent, all the while recognizing that it is inconsistent with textualist theory.
It may very well be that precedent poses a problem only for originalists.
Richard Dougherty
earl maltz wrote:
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
>>>
>>
>
