Originalism and Precedent. (Twenty-Ninth Annual Federalist Society National Student Symposium: Originalism‪)‬

Although originalism has grown in popularity in recent years, the theory continues to face major criticisms. One such criticism is that originalism cannot accommodate precedent. This criticism takes two forms. First, some critics, as well as some advocates of originalism, argue that originalism is inconsistent with precedent and therefore originalist judges must overturn all precedents that conflict with the Constitution's original meaning. (1) If these scholars are correct, however, originalism becomes far less attractive because it would obligate judges to make a number of radical and unpopular decisions. For example, depending on one's reading of the Constitution's original meaning, an originalist might be required to declare paper money unconstitutional or to reverse Brown v. Board of Education. (2)