Perbezaan antara semakan "Duluan kehakiman"

13 bait ditambah ,  14 tahun lalu
==Ketulenan dan stare decisis==
[[OriginalismKetulenan]] - the doctrine that holds that the meaning of a written text must be applied - is in tension with ''stare decisis'', but is not necessarily irrevocably opposed. As noted at top, "''Stare decisis'' is not usually a doctrine used in [[civil law (legal system)|civil law]] systems, because it violates the principle that only the legislature may make law"; Justice [[Antonin Scalia]] argues in ''A Matter of Interpretation'' that America is a civil law not common law nation, and with that in mind, it should come as no surprise that originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the constitution. However, Originalism being a theory of interpretation rather than construction, there is still room within an originalist paradigm for ''stare decisis''; whenever the [[plain meaning rule|plain meaning]] of the text is open to alternative constructions, past precedent is generally seen as a valid guide, with the qualifier being that it cannot trump what the text actually says.
Some originalists go even further. In his confirmation hearings, Justice [[Clarence Thomas]] answered a question from Senator [[Strom Thurmond]] about his willingness to overturn precedent thus: