Download This PaperThe Oath Doesn't Require Originalist Judges
15 Harvard Law & Policy Review 571 (2022), https://journals.law.harvard.edu/lpr/wp-content/uploads/sites/89/2022/05/5-Encarnacion-Krishnamurthi.pdf
24 Pages Posted: 11 Jun 2020 Last revised: 13 Oct 2023
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: Suggested Citation
Encarnacion, Erik and Krishnamurthi, Guha, The Oath Doesn't Require Originalist Judges (May 16, 2020). 15 Harvard Law & Policy Review 571 (2022), https://journals.law.harvard.edu/lpr/wp-content/uploads/sites/89/2022/05/5-Encarnacion-Krishnamurthi.pdf, Available at SSRN: https://ssrn.com/abstract=3602609
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