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03/24/2021

Holden Tanner: Constitutional Norms in Originalist Adjudication
Michael Ramsey

Holden Tanner (Yale Law School, J.D. Candidate, Class of 2021) has posted Constitutional Norms in Originalist Adjudication (35 pages) on SSRN.  Here is the 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.