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.
Recommended Citation
Christopher J. Peters,
Originalism, Stare Decisis, and Constitutional Authority,
(2013).
Available at:
https://scholarworks.law.ubalt.edu/all_fac/879