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31 Harvard Journal of Law & Public Policy 961 (2008)


Until recently, the conversation on originalism and the role of precedent has been dominated by two main camps, which I will call unoriginal originalists and unprecedented precedentialists. Unoriginal originalists refers to people who purport to pay close attention to text, history, and structure, but when these sources conflict with precedent, this camp basically does not have a theory at all. The theory becomes a sort of muddling through, sometimes following precedent and sometimes not. If one, however, is just going to muddle through, or be pragmatic about when to follow precedent, does that not undercut the very grounds on which one is an originalist in the first place? Why not then muddle through across the board or be pragmatic across the board?

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