Originalism and Stare Decisis in the Lower Courts
An interesting new paper by Josh Blackman on precedent vs the original constitution in federal courts. From the abstract at SSRN: The tension between originalism and stare decisis is well known. Many of the Supreme Courtโs most significant constitutional decisions are...
The Supreme Court re-affirms Indian treaty originalism
In aย recent post,ย I noted that originalismโconstruing a text as its makers understood itโis the standard interpretative technique for most legal documents. It is principally in interpreting some parts of the Constitution (and only since the mid-20th century) that the...
The Supreme Court just applied originalism to an Indian treaty, so why not to the Constitution?
Whenever a president nominates to the Supreme Court someone who pledges to apply the Constitution as written, liberal commentators emerge to explain why this is a bad idea. They claim that โoriginalismโ โ applying the Constitution as the Founders understood it โ is...