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Stare Decisis and Constitutional Text

Jonathan F. Mitchell

Solicitor General of Texas

June 1, 2011

Michigan Law Review, Forthcoming
George Mason Law & Economics Research Paper No. 11-25

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court’s stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support constitutional stare decisis, but to do this it must narrow the circumstances in which stare decisis can be applied.

Number of Pages in PDF File: 69

Keywords: Adarand, Brown, Casey, consequentialism, Dickerson, Erie, Ferguson, general common law, Gonzales v. Raich, Hans, Jackson, Lawson, legitimacy, Lochner, Madison, Marbury, originalism, Plessy, pragmatism, precedent, Protestantism, Seminole Tribe, supremacy clause, textualism, Wickard, Youngstown

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Date posted: June 2, 2011 ; Last revised: September 8, 2011

Suggested Citation

Mitchell, Jonathan F., Stare Decisis and Constitutional Text (June 1, 2011). Michigan Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 11-25. Available at SSRN: http://ssrn.com/abstract=1856232

Contact Information

Jonathan F. Mitchell (Contact Author)
Solicitor General of Texas ( email )
209 W. 14th Street
Austin, TX 78701
United States
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