A judicial decision is hardly a "superceding text adopted through a legitimate
process," although that it an interesting and provocative characterization. To
characterize decisions in this way is to undermine the very notion of
constitutionalism, at least if a written constitution is viewed as legally
significant. (One could have a purely common-law constitutional system.) Perhaps we
could see the Constitution merely as an advisory statement of suggested principles to
stimulate creative law-making by the courts. Of course, when the Court takes wing
under due process or the Ninth Amendment, that may not be far off the mark, but
typically the Court strains to show that it is interpreting, and not "superceding,"
constitutional text. The latter would suggest that a Court could effectively erase
constitutional text. Granted, in practice Courts may incline in that direction, but
to view decision as equivalent to amendment is to remove the taint of illegitimacy
that constrains even the most activist of courts, albeit often without great effect.
I would guess that the Warren Court would have been even more assertive had it not
felt compelled to work through the ritual of homage to the text.
-----Original Message-----
From: earl maltz [mailto:[EMAIL PROTECTED]
Sent: Wed 10/15/2003 2:22 PM
To: [EMAIL PROTECTED]
Cc:
Subject: Re: Scalia, Textualism, and Printz
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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>
