Thursday, November 03, 2005

Stare Decisis

David Bernstein says that:
conservative judicial originalism is currently in a state of crisis, precisely because of Justice Scalia's "fainthearted" originalism. If Justice Scalia, originalism's supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one's own land for consumption on one's own farm can be regulated under Congress' power to regulate "interstate commerce"), then what is left of originalism?

I expect that Scalia's problem is that to be a true originalist, many New Deal precedents would have to go out the window, and this is neither politically, nor, in many instances, practically feasible. But to be a sincere originalist, one has to grapple with how to resolve this quandry, not simply refuse to apply originalist reasoning out of "faintheartedness."
What should happen when original meaning and stare decisis are mutually exclusive? My instinct is to say that the approach of Bernstein, Randy Barnett and Justice Thomas is correct--stare decisis should hold less weight than original meaning. I'm not holding my breath waiting for a majority on the Supreme Court to agree with me, though...

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