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The Federalist Society

Originalism, Precedent and Judicial Restraint 2-27-10

We often hear much about the perils of judicial activism and how a judges proper role is as interpreter of law, not maker of law. However, in a world where much binding precedent has been decided on grounds other than original intent, this restrained view of the judiciary is sometimes thought to stand often in stark contrast with the originalist movement. Originalists have had two ways of treating precedent. One is to dismiss non-originalist precedent as inconsistent with originalism. This approach would allow judges to dramatically change the law. A second approach is to suggest that precedent can be reconciled with originalism. But this approach would require determinate rules to prioritize originalism and precedent. This panel will explore the conflict between a restrained judiciary and original constitutional interpretation as well as possible means through which the two may be reconciled. The Federalist Society's Student Division presented this panel at the 2010 Annual Student Symposium on February 27, 2010. Panelists included Justice Stephen Markman of the Michigan Supreme Court; Prof. Mike Rappaport of the University of San Diego School of Law; Prof. Jeffrey Rosen of The George Washington University School of Law; Prof. David Strauss of the University of Chicago Law School; and Judge Gene Pratter of the U.S. District Court for the Eastern District of Pennsylvania as the moderator.
We often hear much about the perils of judicial activism and how a judges proper role is as interpreter of law, not maker of law. However, in a world where much binding precedent has been decided on grounds other than original intent, this restra...
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