When Should Original Meanings Matter?
When Should Original Meanings Matter?
Richard Primus, U of Michigan Public Law Working Paper No. 94 Available at SSRN: http://ssrn.com/abstract=1105865:
Constitutional theory lacks an account of when each of the familiar methods of interpretation - textualism, originalism, stare decisis, and so on - should be used. The dominant tendency is to regard all methods as potentially applicable in every case. In contrast, this Article proposes that each method should be understood as applicable in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which attention to original meaning is, or is not, a valid factor in constitutional decisionmaking.