Can a Justice Misinterpret His or Her Own Words?

Bob Sheridan bobsheridan at earthlink.net
Wed Feb 2 09:58:08 PST 2005


Original misunderstanding?

rs
sfls

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
> UW-Madison
>
>
> 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?
>>  
>> Bobby
>>  
>>  
>>  
>>  
>>  
>> Robert Justin Lipkin
>> Professor of Law
>> Widener University School of Law
>> Delaware
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