Stare Decisis: Precedent vs the Constitution
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Stare Decisis: Precedent vs the Constitution

November 13, 2019

Precedent does not trump the constitution, even when the court says it does. Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, it is the judicial policy of sometimes adhering to a prior decision even when it was wrong. As the majority put it in the 1992 case of Planned Parenthood vs Casey, it is the practice of adhering to a prior decision “whether or not mistaken.” While the Supreme Court doesn’t always follow precedent, in current practice lower courts are bound by opinions of higher courts, and they’re all bound by the Supreme Court’s opinions. Even state courts are bound by Supreme Court opinions on issues arising under the federal Constitution. But is this how things are supposed to be? Nothing in Article III of the Constitution, or in any other clause for that matter, requires adherence to precedent. And nothing in Article III or any other clause of the Constitution delegates a power to the judiciary to create binding rules that require all current and future members of the judiciary to follow precedent. That’s not to say that precedent should always be disregarded either. It can actually be quite helpful when properly used. It has the potential to provide thoughtful arguments from other judges regarding the original, legal meaning of a particular clause of the Constitution. But when a judge is convinced, after a complete and careful consideration of all the relevant information, including the opinions of previous judges, that the precedent is wrong, it’s the judge’s job – it’s actually their duty – to follow what they believe to be the proper view of the Constitution no matter what the precedent has to say. As the founders widely understood, the Constitution is supreme. And it remains supreme even if the opinion of the Supreme Court contradicts it. If you believe, like I do, that all these judges take an oath to the Constitution – rather than an oath to precedent – and their oath requires them to issue opinions based on the original, legal meaning of the Constitution – then the doctrine of stare decisis is unconstitutional even if the Supreme Court disagrees.

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  1. Unconstitutional as so much is as we see unfolding before our eyes. Time for the judiciary and legislators to get re-educated on the Framers' principles for a FREE STATE!

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