Property, the Individual, and Governmental Power: The Meaning of Gelpcke v. City of Dubuque

Abstract

What is commonly perceived as the historical dimension of precedent is the fact that the context in which later courts cite an opinion raises issues other than those dealt with in the original decision. This article attempts to demonstrate that another aspect of the historical dimension of precedent is that knowledge of the precise facts and context in which the original decision was rendered may hold unsuspected significance for problems confronting a later society. Knowledge of precise facts becomes particularly important because judicial precedent often acts as a limit on the rights of the majority. A proper understanding of the factual underpinnings of a case may, therefore, provide unsuspected precedent for limits on majority power; or conversely, for limits on the involvement of the courts in protecting a complaining minority. Further, the historical significance of cases, accurately understood, may provide consistency for what might otherwise appear to be unprincipled judicial decision making.