Author ORCID Identifier
0000-0002-4989-7133
Document Type
Article
Publication Date
2007
Keywords
Originalism, Stare decisis, Supreme Court, Common law, State courts, Rules of property, Founding period
Abstract
The discussions in this Article proceed as follows. Part I briefly introduces several areas of contemporary debate for which this inquiry is relevant. In Part II, I examine previous scholarly evaluations of the doctrine of precedent in the formative period. I provide an alternative explanation for the adoption by American courts of rhetoric favoring stare decisis, one that links the rhetoric used by these courts with the predominant property discourse of the Founding period and with the Marshall Court’s subsequent emphasis on vested rights and the Contracts Clause. I suggest that the stare decisis property rule gained widespread acceptance as a powerful form of argument because of the considerable emphasis on vested property rights in the formative era. In Part III, I use the formative era’s invocations of the stare decisis property rule to suggest that in this period state courts tended to preserve property rules that they believed were necessary to avoid disrupting a large number of transactions. The cases that I discuss form the basis for an argument that jurists in the antebellum era held distinctly “conservative” ideas about the nature of change in the common law, at least when property reliance interests were at stake. The conclusion of this historical study is a modest contribution to the contemporary debate about the binding nature of precedent in constitutional law.
First Page
113
Publication Title
Ave Maria Law Review
Recommended Citation
Polly J. Price, A Constitutional Significance for Precedent: Originalism, Stare Decisis, and Property Rights, 5 Ave Maria L. Rev. 113 (2007).
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