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Constitutional Norms in Originalist Adjudication

Authors: Holden Tanner;

Constitutional Norms in Originalist Adjudication

Abstract

Our legal system thrives on norms. Informal norms about the proper way to wield constitutionally conferred discretion are often the sole source of guidance for government actors in areas where the courts lack control. But norms also show up in areas that involve judicial interpretation. When a norm is brought to the attention of a court, the temptation of originalist and textualist jurists will be obvious: ignore it, and just focus on the text. This paper offers a dissenting view. Norms are valuable arguments in originalist adjudication, and nothing in the standard account of originalist jurisprudence requires courts to ignore them. Instead, a renewed focus on norms will sharpen originalist sensitivity to key ideas of adjudication, such as workability analysis in the stare decisis context and the role of prudential choices in constitutional construction. Norms may even offer a way past the logjam in public meaning originalism, freeing up jurists to focus on case-by-case normative choices rather than subscribing to a single controlling norm when deciding between permissible interpretations. Originalism helps us think about what role norms play in constitutional decision-making, and norms help us understand the forms and limits of originalist jurisprudence. Rather than ignore them, originalists should embrace them.

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
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