Casey Khan asks, “So now my question to our legal experts like Stephan and Professor Shaffer: on a Federal level is the concept of stare decisis valid under this Constitution of enumerated powers? The obvious answer would seem to be no, especially for us humble layman. It would seem that under the Federal Constitution that it is a power that may be reserved for the States and local jurisdictions but not the Federal.”
Stare decisis just means that the courts are reluctant to rule contrary to a previously established case’s holding. This rule makes perfect sense in a decentralized court system such as the common law or Roman/civil law, or in some private law system. In a system dominated by legislation it makes less and less sense, since the primary job of judges becomes not to find the just outcome in a given dispute, but to interpret and apply an inherently ambiguous legislare-decreed statute.
In teh case of the Supremes at least they do admit that stare decisis has less weight when it comes to constitutional decisions, as opposed to mere interpretations of federal statute. If they make a mistake interpreting a federal law, the reasoning goes, Congress can simply revise the statute by simple legislation. So even if the Supremes make a mistake construing a federal statute, it’s okay to stick with this decision (stare decisis) because Congress can fix it if they don’t like it. But Congress cannot easily override Congress’s construction of the Constitution–think Roe v. Wade. For this reason the Supremes are more willing to overturn Constitutional cases.The problem, in my view, lies in legislation itself–including the special form of legislation known as a written constitution. Judges should not be construing legislation; they should be deciding disputes on the basis of developed principles of justice, not on the decrees of a bunch of bureaucrats.
Another problem, at the federal level, is the Supreme Court has arrogated to itself not only a seat at the table as an equal–that is, able on its own to judge the constitutionality of a given federal law or action, alongside and equal to the Congress and President; which would be called “concurrent review”–but the doctrine of judicial supremacy, which means they are the sole and final arbiter of what the Constitution means. Of course, this is exactly wrong: at most, the Supremes were to have one of three voices in construing the Constitution (and this is not even counting the role the states ought to have, under Jefferson and Madison’s theory of nullification).
If the Supremes’ construction of the Constitution were not the “final word” then it would not really matter so much if they abided by stare decisis. For if their interpretation of the Constitution–whether based on stare decisis or not–was out of line, the other two branches, or the states, could refuse to go along with it. I suspect that with genuine concurrent review and federalism, the Supremes would be much more cautious in stretching the plain meaning and purpose of the Constitution; it might lead to constitutional crisis.
So I do not see stare decisis as being a power itself; it is just an internal rule of decision adopted by the Supreme Court. It in itself is not the problem; the problem is the Supreme’s tendency to make the wrong decisions in the first place, not their tendency to stick with a past decision; and the problem lies also in the power of judicial supremacy–judicial dictatorship–assumed by the feds.
For more on this see, e.g, re Jefferson and Madison and the Kentucy resolves and the issue of federalism here; concurrent review; Quirk & Bridwell’s Judicial Dictatorship; and problems with legislation as a means of enacting law.
9:50 pm on October 14, 2005
