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An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee Strang

Lee J Strang

In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory.

First, I briefly review the debate in originalism over the role of constitutional precedent.

Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist …