It's a Bird, it's a Plane, No, it's Super Precedent: A Response to Faber and Gerhardt

21 Pages Posted: 15 Mar 2012

Date Written: March 15, 2012

Abstract

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.

Keywords: Originalism, Constitutional interpretation, Stare decisis, Judicial review

JEL Classification: K00, K1, K3

Suggested Citation

Barnett, Randy E., It's a Bird, it's a Plane, No, it's Super Precedent: A Response to Faber and Gerhardt (March 15, 2012). Minnesota Law Review, Vol. 90, 2006; Georgetown Public Law Research Paper No. 12-048. Available at SSRN: https://ssrn.com/abstract=2023771

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)

HOME PAGE: http://www.randybarnett.com

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