A rhetorical question (and faint-hearted originalism)
crossf at mail.utexas.edu
Wed Aug 22 17:53:41 PDT 2007
There is an out for originalists, though I don't think it is Scalia's theory.
Suppose originalism contemplated adherence to precedent as
fundamental to the "judicial power." In that case, following
precedent is originalism. If precedent conflicts with the judge's
best view of substantive originalism, he or she has to choose between
two conflicting originalist positions. I can imagine various
different approaches to that choice, but a reliance on precedent
would not necessarily be contrary to originalism.
Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
CBA 5.202 (B6500)
Austin, TX 78712-0212
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