Stare Decisis in an Originalist Congress

23 Pages Posted: 22 Mar 2012

Date Written: January 1, 2012

Abstract

With presidential candidates and members of Congress calling upon the political branches to reassert their role as constitutional interpreters, there is an urgent need to explore what it would mean for Congress to take constitutional interpretation seriously. In particular, if Congress were originalist, how would it go about its interpretive task? I have previously argued that originalist theory requires Congress to be originalist in its interpretation of the Constitution. This paper examines whether an originalist Congress would owe deference to the constitutional judgments of previous congresses. In other words, should a form of stare decisis prevail in an originalist Congress?

Keywords: originalism, Congress, Katyal, Maltz, Monaghan, stare decisis, precedent

Suggested Citation

Alicea, Joel, Stare Decisis in an Originalist Congress (January 1, 2012). Harvard Journal of Law and Public Policy, Vol. 35, No. 2, 2012. Available at SSRN: https://ssrn.com/abstract=2026211

Joel Alicea (Contact Author)

Harvard Law School ( email )

United States

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