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In a recent post on Marbury v. Madison, I mentioned Michael Stokes Paulsen, co-author of The Constitution: An Introduction and a clear thinker extraordinaire. I’ve been doing a little more reading from him, along with a bit from Ricochet’s own John Yoo. (It’s wonderful what you can download in PDF these days to read on your phone.)
Paulsen has a significant analysis of the role of stare decisis, the fancy Latin name for the principle that a court should follow precedent. More simply, it’s the idea that what courts have said in the past should determine what a judge says today.
This principle is big in the common understanding and practice of law in the United States. It’s why lawyers and judges have to know so many prior cases, especially prior Supreme Court cases. It’s also why, sometimes, that’s pretty much all they seem to be taught to care about. As Paulsen says in his (short, very readable) article “Everything You Need to Know About Constitutional Law”:
The problem with many bad Constitutional Law courses is that they are all about the precedents, and not at all about the Constitution.
He also notes in the sequel article “Citizens, Unite!” that:
[P]recedent … should never trump the written constitutional text, but might be useful for seeing what someone else has thought about an issue.
In the end, Paulsen doesn’t make much of stare decisis. Back to “Everything You Need to Know”:
The short answer to the problem of precedent is that some precedents are sound — helpful interpretations of the Constitution that can help resolve doubtful points — and other precedents are unsound, unhelpful misinterpretations of the Constitution’s text, structure, and history. That’s really all there is to it. The sound precedents are useful guides; the unsound ones should be regarded as having no authority or validity whatsoever.
In his more academic writings, he says the same. From “The Irrepressible Myth of Marbury” (pp. 626-7):
But even more fundamentally, when used in this strong sense of adhering to precedents even if wrong, stare decisis is unconstitutional. (In any other sense, stare decisis is simply irrelevant, or deceptive: a court that invokes the doctrine to justify a decision it was prepared to reach on other grounds is adding a makeweight, or using the doctrine as a cover for its judgment on the merits.)
And then, in of “The Text, the Whole Text, and Nothing but the Text,” Paulsen summarizes his earlier writer as follows (p. 1411):
[T]hat stare decisis, in the strong sense of deliberately adhering to precedents even if wrong, is unconstitutional, and that stare decisis, if employed in support of a result independently reached, is a pure makeweight …
Paulsen’s final conclusion, in “The Irrepressible Myth” (p. 628):
The doctrine [of stare decisis] should be repudiated entirely in the area of constitutional law.
We can condense all of this into an argument with a (modified) constructive dilemma form:
- Either a judicial precedent is consistent with the Constitution, or it is not.
- If it is consistent with the Constitution, then it adds no support to later decisions.
- If it is not consistent, then it is unConstitutional.
- If a judicial precedent either adds no support to later decisions or is unConstitutional, then judges don’t need to adhere to it.
- Therefore, there are no judicial precedents to which judges need to adhere.
This is what logicians call a valid argument, which means that if the premises are true, then the conclusion must to be true. The first premise has the form “Either A or not A;” that makes it a tautology, a statement that cannot possibly be false; so Premise 1 is true. And the other three premises seem only slightly less obvious to me.
If Paulsen’s argument is correct — and if I have reassembled it correctly — many of us have to unlearn nearly everything we thought we knew about Constitutional law. It would mean that there is no such thing as case law, no such thing as court cases with the weight of law (not as far as courts should be concerned, anyway).
But you Ricochetti are clever folks, and many of you have been to law school–unlike me. Do any of you know of some objection I should know about?