Stare Decisis and Constitutional Text

68 Pages Posted: 2 Jun 2011 Last revised: 24 May 2017

Jonathan F. Mitchell

Stanford Law School

Date Written: June 1, 2011

Abstract

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.

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

Suggested Citation

Mitchell, Jonathan F., Stare Decisis and Constitutional Text (June 1, 2011). 110 Mich. L. Rev. 1 (2011). Available at SSRN: https://ssrn.com/abstract=1856232

Jonathan F. Mitchell (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://law.stanford.edu/directory/jonathan-mitchell/

Paper statistics

Downloads
242
Rank
102,636
Abstract Views
1,635