The Corner

The Conundrum That Confronts Honest Judges

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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.

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Peter Robinson — Peter M. Robinson is a research fellow at the Hoover Institution.

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