A rhetorical question (and faint-hearted originalism)

[Frank Cross]

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
512.471.5250  
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