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


Lawrence B. Solum


Georgetown University Law Center


University of Pennsylvania Journal of Constitutional Law, Vol. 9, No. 1, October 2006
Illinois Public Law Research Paper No. 09-21

Abstract:     
This essay advances a formalist conception of constitutional stare decisis. I shall argue 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 I shall call "neoformalism" to distinguish my view from the so-called "formalism" caricatured by the legal realists (and from some other views that are called "formalist").

In Part II, The Critique of Unenumerated Constitutional Rights, we set 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, we examine 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? We wrap it all up in Part VI, Unenumerated Rights and the Future of Constitutional Doctrine.

Number of Pages in PDF File: 55

Keywords: constitution, constitutional theory, precedent, stare decisis, formalism, realism, jurisprudence

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Date posted: September 28, 2006  

Suggested Citation

Solum, Lawrence B., The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights. University of Pennsylvania Journal of Constitutional Law, Vol. 9, No. 1, October 2006; Illinois Public Law Research Paper No. 09-21. Available at SSRN: http://ssrn.com/abstract=933076

Contact Information

Lawrence B. Solum (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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