The Conundrum That Confronts Honest Judges
Any good and honest judge must, a) uphold the original meaning of the Constitution, and, b) uphold precedent, observing the doctrine of stare decisis, a Latin phrase meaning “stand by things decided.” So what is the good and honest judge to do when confronted with half a century or so of Supreme Court decisions that ignore the original meaning of the Constitution?
Even for Judge Laurence Silberman, that’s not easy:
Stare decisis is not inconsistent with originalism, but it may require you as a judge to consider hard whether you wish originalism to trump stare decisis.
To watch one of the finest legal minds in the nation consider one of the toughest questions in constitutional law, click here.