Can a Justice Misinterpret His or Her Own Words?
bobsheridan at earthlink.net
Wed Feb 2 09:58:08 PST 2005
Howard Schweber wrote:
> This is a lovely question to consider in the context of "objective"
> theories of legislative intent, or original understanding. Could
> Madison have simply been wrong about the original understanding of his
> own words? How about Wilson, or Chase?
> Howard Schweber
> Dept. of Political Science
> At 10:34 AM 2/2/2005 -0500, you wrote:
>> Last fall, I think, we discussed whether "economic activity"
>> was a requirement for Commerce Clause regulations under /Lopez/ or
>> was it instead added in/ Morrison?/ I don't intend to revisit that
>> question here. What I want to know is this. In /Morrison/, Chief
>> Justice Rehnquist (clearly?) seems to regard /Lopez/ as standing for
>> the proposition, /inter alia/, that Commerce Clause regulations under
>> the substantial effects test require that the regulated activity be
>> economic. Are courts, lawyers, scholars, and so forth bound by his
>> interpretation of a prior decision he wrote. Of course, as a general
>> matter of interpretation, there's no problem in insisting that an
>> author doesn't understand his or her own words. But are there
>> (informal) constitutional adjudicatory norms which prevents this or
>> at least makes it highly questionable? Has such a dispute ever
>> occurred between Justices in Supreme Court (or lower court) litigation?
>> Robert Justin Lipkin
>> Professor of Law
>> Widener University School of Law
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