Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania V. Casey

Part of Symposium: Can Originalism be Reconciled with Precedent? A Symposium on Stare Decisi

Originalism and James Bradley Thayer

This Essay provides an originalist appraisal of Professor James Bradley Thayer’s famous book on The Origin and Scope of the American Doctrine of Constitutional Law. I critique Professor Thayer’s thesis on multiple levels, pointing out important aspects of the original understanding that the Framers would have had of the meaning and origins of the U.S. Constitution, as well as disputing Professor Thayer’s discussion of the history of American judicial review from 1790 to the publication of his book in 1893. I conclude that no person can be both an originalist and a Thayerian. The two theories contradict one another and cannot be jointly adhered to. I then explain why I prefer originalism to Thayerianism as a normative matter

Text, Precedent, and the Constitution: Some Originalist and Normative Arguments for Overruling Planned Parenthood of Southeastern Pennsylvania V. Casey

Part of Symposium: Can Originalism be Reconciled with Precedent? A Symposium on Stare Decisi

A Government of Limited and Enumerated Powers : In Defense of \u3cem\u3eUnited States v. Lopez\u3c/em\u3e

The Supreme Court\u27s recent decision in United States v. Lopez marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being asleep at the constitutional switch for more than fifty years, the Court\u27s decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the days of limited national power. The Lopez Court has shown us that we can go back, if we want to, so long as: 1) we can figure out a workable theory of the limits on the federal commerce power; 2) we can agree on the propriety of vigorous judicial review in federalism cases; and 3) we can take proper account of the important reliance interests that have accrued around certain key precedents decided in the past half century

The Originalist and Normative Case Against Judicial Activism: A Reply to Professor Randy Barnett

In Restoring the Lost Constitution: The Presumption of Liberty, Professor Randy E. Barnett lays out a bold defense of the theory of originalism in constitutional interpretation. Professor Barnett\u27s book is perhaps the most important book about originalism since Robert H. Bork\u27s The Tempting of America. Barnett presents a normative case as to why contemporary Americans should agree to be governed by the original meaning of the Constitution, and, like most sophisticated originalists, he nicely distinguishes between original meaning and original intent. Barnett correctly notes that what really matters in constitutional interpretation is not what the Framers intended that provision to mean but rather what the original language actually meant to those who used the terms in question. In defending original meaning over original intent, Professor Barnett aligns himself with other sophisticated originalists like Robert H. Bork, Antonin Scalia, Gary Lawson, John Harrison, Akhil Amar, and Michael Paulsen. Barnett\u27s book claims to use the exact methodology those sophisticated originalists use, and he claims that using that methodology leads us to the conclusion that the Constitution mandates libertarianism at both the state and federal level