For some time, a scholarly debate has raged over whether a commitment to the original meaning of the Constitution allows for the doctrine of stare decisis, whereby courts defer to precedent simply because it is precedent. This Essay explains the range of theoretical possibilities for this seemingly incompatible duo, as put forth by originalism’s leading scholars, and situates these various theories on a continuum. The Essay ends with a preview of the difficulties and possibilities that follow from the various empirical answers regarding the relationship between stare decisis and the Constitution at the Founding.
James C. Phillips,
Is Stare Decisis Inconsistent with the Original Meaning of the Constitution?: Exploring the Theoretical and Empirical Possibilities,
Notre Dame L. Rev. Online
Available at: http://scholarship.law.nd.edu/ndlr_online/vol91/iss2/1