November 2008 Vol. 107 No. 2 THE REVIEW

When Should Original Meanings Matter?

Richard A. Primus

Constitutional theory lacks an account of when each of the familiar sources of authority—text, original meaning, precedent, and so on—should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.

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