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

92 Notre Dame L. Rev. 1921 (2016-2017)
Originalism and Stare Decisis

handle is hein.journals/tndl92 and id is 1971 raw text is: ORIGINALISM AND STARE DECISIS Amy Coney Barrett* INTRODUCTION Justice Scalia was the public face of modern originalism. Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative. This theory stands in contrast to those that treat the Constitution's meaning as suscepti- ble to evolution over time. For an originalist, the meaning of the text is fixed so long as it is discoverable. The claim that the original public meaning of constitutional text consti- tutes law is in some tension with the doctrine of stare decisis. Stare decisis is a sensible rule because, among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court's existing cases. But what happens when precedent conflicts with the original meaning of the text? IfJustice Scalia is correct that the original public mean- ing is authoritative, why is the Court justified in departing from it in the name of a judicial policy like stare decisis? The logic of originalism might lead to some unpalatable results. For example, if the original meaning of the Constitution's Gold Clauses prohibits the use of paper money, is an original- ist bound to plunge the economy into ruin? Some constitutional theorists treat precedent as capable of supplementing and even supplanting the text's historical meaning; for them, choosing to follow precedent that diverges from the original meaning is relatively unproblematic. Originalists, in con- trast, have difficulty identifying a principled justification for following such precedent, even when the consequences of overruling it would be extraordi- narily disruptive. Faced with this problem, Justice Scalia famously described himself as a faint-hearted originalist who would abandon the historical meaning when following it was intolerable.' He claimed that stare decisis is not part of my @ 2017 Amy Coney Barrett. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Diane and M.O. Miller, II Research Chair in Law, Notre Dame Law School. This Essay was prepared for the Notre Dame Law Review's federal courts symposium on the jurisprudence of Justice Scalia. Thanks to all participants for discussing and thereby sharpening the argument developed in this contribution. 1 Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REv. 849, 864 (1989) (I hasten to confess that in a crunch I may prove a faint-hearted originalist.). Justice Scalia 1921

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