A rhetorical question (and faint-hearted originalism)

[James G. Wilson]

     There is a very strong argument, made many years by Professor 
Jefferson Powell, that the common law method is the originalist method 
for constitutional interpretation.  But, most advocates of contempory 
originalism seem to argue that only text and the Framers' intentions are 
legitimate sources of law.  Judge Bork once referred to those of us who 
thought otherwise as "heretics," an interesting charge in what I thought 
was a secular enterprise.   Roe and Casey, of course, are major aspects 
of this controversy, just as the slavery issue influenced so many 
consitutional cases leading up to the Civil War.  One of the goals of 
originalism was to reach the conclusion that Roe was an illegimate 
precedent and should be reversed.  There are certainly less abstract, 
sweeping ways to overrule Roe that do not require the Supreme Court to 
reconsider so many decisions.  Chief Justice Rhenquist was a consumate 
legal realist who brilliantly practiced the common law method, and he 
obviously sought Roe's demise.   So, to put Professor's analysis in 
another formation: You don't have to be a strict originalist, because 
all of us already are strict orignalists. 

Frank Cross wrote:

>
> 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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