The 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

See all articles by Erik Encarnacion

Erik Encarnacion

The University of Texas School of Law

Guha Krishnamurthi

University of Maryland Francis King Carey School of Law

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, 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

Erik Encarnacion (Contact Author)

The University of Texas School of Law ( email )

Austin, TX
United States

Guha Krishnamurthi

University of Maryland Francis King Carey School of Law ( email )

500 W. Baltimore Street
Baltimore, MD 21201

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