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Full-Text Articles in Jurisprudence
The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum
The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
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 "neoformalism" to distinguish his 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, the author sets the stage by …
Taking The Framers Seriously, William Michael Treanor
Taking The Framers Seriously, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
This article reviews Taking the Constitution Seriously by Walter Berns (1987).
This review focuses on three of the key historical points that Walter Berns makes: his arguments that the Declaration of Independence is a Lockean document; that the Constitution encapsulates the political philosophy of the Declaration; and that the framers viewed the commercialization of society as a salutary development and were unambivalent champions of the right to property. Examination of these issues suggests that the ideological universe of the framers was far more complex than Berns indicates. While the revolutionary era witnessed a new concern with individual rights and a …