Document Type

Article

Publication Date

9-3-2013

Abstract

This chapter examines the relationship among three normative questions about

American constitutional law: How should the Constitution be interpreted? When

may (or should) the Supreme Court overrule its own constitutional precedents? And

why is the Constitution binding at all? The author begins by de-constructing the

“special difficulty” with stare decisis that proponents of originalist interpretation

often perceive. That difficulty, the author contends, can be ex-plained only by

reference to some underlying normative theory of constitutional authority―of why

the Constitution binds us in the first place. The author then as-sesses four extant

accounts of constitutional authority to determine whether any of them implies both

originalism and a distrust of stare decisis. While three such ac-counts (Values

Imposition, Consent, and Moral Guidance) may support original-ism and reject

stare decisis, none of these accounts is plausible. A fourth account (Dispute

Resolution) is more plausible but implies neither strong originalism nor a rejection

of stare decisis. Neither originalism nor distrust of precedent, therefore, appears to

be supported by a plausible account of constitutional authority.

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