22 Const. Comment. 311 (2005)
Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania v. Casey

handle is hein.journals/ccum22 and id is 319 raw text is: TEXT, PRECEDENT, AND THE
Steven G. Calabresi*
It is maintained by the advocates of the bank that its consti-
tutionality in all its features ought to be considered as settled
by precedent and by the decision of the Supreme Court. To
this conclusion I can not assent. Mere precedent is a danger-
ous source of authority, and should not be regarded as decid-
ing questions of constitutional power except where the acqui-
escence of the people and the States can be considered as well
President Andrew Jackson, rejecting McCulloch v. Maryland,
while vetoing the renewal of the Bank of the United States
more than 40 years after President Washington had held the
Bank constitutional.!
One immediate tension that any conservative in the field of
law must necessarily feel is between the demands of the text of
the Constitution, as it was originally understood, and the de-
mands of precedent. Conservative lawyers typically accept that
the Constitution is higher law but disagree about whether that
higher law is the enacted constitutional text or the traditions and
* George C. Dix Professor of Constitutional Law, Northwestern University. I
have benefited in writing this article from the lengthy and extremely helpful comments
and suggestions of: Barry Friedman, Steffen Johnson, Gary Lawson, John 0. McGinnis,
and Thomas W. Merrill. I would also like to thank Brad Fiorito and David Presser for
their extraordinary help as my research assistants on this article.
1. Veto Message of July 10, 1832 in 3 MESSAGES AND PAPERS OF THE
PRESIDENTS 1139, 1144-45 (Richardson ed., 1897).

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