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The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights

By Lawrence B. Solum

Abstract

This essay advances a formalist conception of constitutional stare decisis. The author argues that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework--a revival of formalist ideas in legal theory that he calls \u22neoformalism\u22 to distinguish his view from the so-called \u22formalism\u22 caricatured by the legal realists (and from some other views that are called \u22formalist\u22). In Part II, The Critique of Unenumerated Constitutional Rights, the author sets the stage by briefly recalling why the unenumerated rights precedents are under theoretical (and political) siege. Then, in Part III, Neoformalism, Stare Decisis, and the Rule of Law, he examines the jurisprudential roots of a formalist revival that would create theoretical space for the idea that the Supreme Court should regard itself as bound by precedent. In Part IV, A Neoformalist Conception of Constitutional Stare Decisis, that theoretical framework is deployed to develop the outline of a neoformalist theory of constitutional stare decisis. This conception is brought down to earth in Part V, which answers the question posed by its title: Does the Neoformalist Conception of Constitutional Stare Decisis Support Contemporary Unenumerated Rights Jurisprudence? The author wraps it up in Part VI, Unenumerated Rights and the Future of Constitutional Doctrine

Topics: originalism, precedent, stare decisis, neoformalism, progressive constitutionalism, formalism, constitution, constitutional theory, realism, Constitutional Law, Courts, Jurisprudence, Rule of Law
Publisher: Scholarship @ GEORGETOWN LAW
Year: 2006
OAI identifier: oai:scholarship.law.georgetown.edu:facpub-1870
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