68 Pages Posted: 2 Jun 2011 Last revised: 24 May 2017
Date Written: June 1, 2011
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: 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