Originalism, Precedent and Judicial Restraint

We often hear much about the perils of “judicial activism” and how a judge’s proper role is as interpreter of law, not maker of law.  However, in a world where much binding precedent has been decided on grounds other than original intent, this restrained view of the judiciary is sometimes thought to stand often in stark contrast with the originalist movement.  Originalists have had two ways of treating precedent. One is to dismiss non-originalist precedent as inconsistent with originalism. This approach would allow  judges to dramatically change the law.  A second approach is to suggest that precedent can be reconciled with originalism. But this approach would require determinate rules to prioritize originalism and precedent. This panel will explore the conflict between a restrained judiciary and original constitutional interpretation as well as possible means through which the two may be reconciled.

• Justice Stephen Markman, Michigan Supreme Court
• Prof. David Strauss, University of Chicago Law School
• Prof. Jeffrey Rosen, George Washington University School of Law
• Prof. Mike Rappaport, University of San Diego School of Law
• Moderator: TBA