Originalism and Precedent

Originalism and Precedent

Is precedent always opposed to Originalism?  Are there certain cases or issues when precedent is helpful or imperative?  

This unit in the No. 86 curriculum explores the important question of the relationship of Originalism to precedent judicial decisions.

“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”

― Federalist No. 78

Originalists should have a couple of simple, clear rules regarding the use of precedent. While precedent is sometimes necessary, those situations ought to be an exception to Originalist interpretation and not the default rule.

Although originalism can be difficult, the enterprise becomes gradually easier as more originalist work is done. Originalism aims to provide an objective basis for evaluating the constitution and that’s an important endeavor, even when it is difficult to achieve.

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2 of 2: Is Originalism Too Hard An Enterprise? [No. 86]

Professor John McGinnis explains that although originalism can be difficult, the enterprise becomes gradually easier as more originalist work is done. There is now a community of scholars, judges and students who have developed originalist methods t ... Professor John McGinnis explains that although originalism can be difficult, the enterprise becomes gradually easier as more originalist work is done. There is now a community of scholars, judges and students who have developed originalist methods that can be used in scholarship and judicial review. Originalism aims to provide an objective basis for evaluating the constitution and that’s an important endeavor, even when it is difficult to achieve.

Professor John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University School of Law.

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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About this Module

Total run time:

5m

Course:

Total videos:

2

Difficulty:

Elective

Tags:

  • Constitution