About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

22 Const. Comment. 299 (2005)
Originalism, Precedent, and Candor

handle is hein.journals/ccum22 and id is 307 raw text is: ORIGINALISM, PRECEDENT, AND CANDOR David A. Strauss* I Some legal principles are purely conventional. Within a wide range of possible rules, it doesn't matter much what the rule is; we just have to have a rule. Traffic keeps to the right is a customary example. But other legal principles are not just con- ventional. Some alternatives are much better than others. If the question is whether religious minorities should be subject to per- secution or whether battery should be a tort, it is not enough just to have a rule. Legal principles addressing questions of that kind are unavoidably based on judgments about morality, social pol- icy, and similar matters. You can't have a system of tort law, or a system of religious freedom, or many other things that the law provides, without making such judgments. The controversy arises over the question: who should make those judgments? When the issue is one of constitutional law, originalism, as I understand it at least, provides a clear answer: those judgments were authoritatively made by the Framers of the Constitution. Originalists have to say who counts as the Framers, and they have to have a way of ascertaining what judgments that group made, but for present purposes those are details, and I will assume that originalists have an adequate way of doing both those things. The point is that according to originalism, the interpreter does not make controversial judg- ments about morality and policy; his or her job is to implement the judgments made by someone else. There may be versions of originalism that are more equivocal on this point, but at least in its purest and most comprehensive form, originalism allows no room, at all, for the interpreter to make such judgments. Indeed * Harry N. Wyatt Professor of Law, The University of Chicago. I thank the Son- nenschein Fund at the University of Chicago Law School for financial support.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most