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

handle is hein.journals/ccum22 and id is 307 raw text is: ORIGINALISM, PRECEDENT, AND
David A. Strauss*
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.

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