My paper, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, is now available in the final version, with pagination on SSRN. Here is the abstract:
This essay advances a formalist conception of constitutional stare decisis. I shall argue 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 I shall call “neoformalism” to distinguish my 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, we set the stage by briefly recalling why the unenumerated rights precedents are under theoretical (and political) siege. Then, in Part III, Neoformalism, Stare Decisis, and the Rule of Law, we examine the jurisprudential roots of a formalist revival that would create theoretical space for the idea that the Supreme Court should regard itself as bound by precedent. In Part IV, A Neoformalist Conception of Constitutional Stare Decisis, that theoretical framework is deployed to develop the outline of a neoformalist theory of constitutional stare decisis. This conception is brought down to earth in Part V, which answers the question posed by its title: Does the Neoformalist Conception of Constitutional Stare Decisis Support Contemporary Unenumerated Rights Jurisprudence? We wrap it all up in Part VI, Unenumerated Rights and the Future of Constitutional Doctrine.