Posted by Randy Barnett:
Originalism and the Role of Precedent:
http://volokh.com/archives/archive_2005_05_01-2005_05_07.shtml#1115394226
Those who have enjoyed my debate this week with Cass Sunstein, may be
interested in a new short paper I have just posted on SSRN concerning
the proper role of precedent in a theory of originalism. It is
entitled, [1]Trumping Precedent with Original Meaning: Not as Radical
as It Sounds. Here is the abstract:
In recent years, originalism as a method of interpretation has
grown in its intellectual and practical appeal. The latest
challenge to originalism from nonoriginalists is based on the
doctrine of precedent. Acceptance of originalism, it is charged,
would necessitate the reversal of crucially important landmark
decisions and thereby provides a reduction ad absurdum of
originalism. Until recently, few originalists have considered
carefully the relationship between originalism and the doctrine of
stare decisis (though this situation is starting to change).
In this short essay, I contend that original meaning should indeed
trump previous Supreme Court decisions that are inconsistent with
the original meaning of the Constitution. But the main thrust of
the essay explains why this implication is not as radical as it
sounds because there remains much room for the doctrine of
precedent in originalism. It is not incompatible with original
public meaning originalism to adhere to precedent in cases
involving (a) nonconstitutional issues, (b) matters of
constitutional construction, (c) detrimental reliance by
identifiable individuals, (d) epistemic concerns about the
correctness of originalist claims, and perhaps also (e) where the
text was originally ambiguous.
Knowing the degree to which a commitment to originalism entails the
rejection of the doctrine of precedent may well influence the
degree to which originalism is deemed acceptable by academics,
judges, and the general public. For this reason, it is important to
make clear that a commitment to following original meaning where it
conflicts with judicial precedent is far less radical a stance than
critics of originalism, and perhaps even some originalists, assume.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=714982
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