Why the Oath Doesn’t Entail Originalist Adjudication

Posted: 11 Jun 2020

See all articles by Erik Encarnacion

Erik Encarnacion

The University of Texas School of Law

Guha Krishnamurthi

South Texas College of Law Houston

Date Written: May 16, 2020

Abstract

The "Oath Argument" purports to show that judges should be originalists. This short paper shows that nothing about the Oath to uphold the Constitution requires that judges decide Constitutional questions as originalists, even if we grant that the Constitution's meaning is determined by its original public meaning.

Keywords: originalism, oaths, Thayerism, constitutional interpretation, constitutional theory

Suggested Citation

Encarnacion, Erik and Krishnamurthi, Guha, Why the Oath Doesn’t Entail Originalist Adjudication (May 16, 2020). Available at SSRN: https://ssrn.com/abstract=3602609

Erik Encarnacion (Contact Author)

The University of Texas School of Law ( email )

Austin, TX
United States

Guha Krishnamurthi

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
382
PlumX Metrics