It's a Bird, it's a Plane, No, it's Super Precedent: A Response to Faber and Gerhardt
Randy E. Barnett
Georgetown University Law Center
March 15, 2012
Minnesota Law Review, Vol. 90, 2006
Georgetown Public Law Research Paper No. 12-048
The normative case for originalism is based, in large measure, on the superiority of the enacted text over the opinions of members of the government whom it is supposed to govern and limit-including members of the Supreme Court. The author does not see how an originalist can accept that the Supreme Court could change the meaning of the text from what it meant as enacted and still remain an originalist. In other words, once it becomes appropriate for the Supreme Court to discard original meaning and the original meaning of the text is thereby reduced to a factor among many considerations by which the Constitution is "interpreted," the method being used is no longer originalism.
Number of Pages in PDF File: 21
Keywords: Originalism, Constitutional interpretation, Stare decisis, Judicial review
JEL Classification: K00, K1, K3Accepted Paper Series
Date posted: March 15, 2012
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