Academic journal article
By Paulsen, Michael Stokes
Constitutional Commentary , Vol. 22, No. 2
Whatever one's theory of constitutional interpretation, a theory of stare decisis, poured on top and mixed in with it, always corrupts the original theory. If one is an originalist--that is, if one believes that the Constitution should be understood and applied in accordance with the objective meaning the words and phrases would have had to an informed general public at the time of their adoption (1)--then stare decisis, understood as a theory of adhering to prior judicial precedents that are contrary to the original public meaning, is completely irreconcilable with originalism. Stare decisis contradicts the premise of originalism--that it is the original meaning of the words of the text, and not anything else, that controls constitutional interpretation. To whatever extent precedents inconsistent with original meaning are accepted as controlling (whether sometimes and to some extent, or always and absolutely), such acceptance undermines--even refutes--the premises that are supposed to justify originalism. (2)
If one is a non-originalist, pragmatist, or otherwise outcome-driven "interpreter" of the Constitution--that is, if one believes that the Constitution should be interpreted in such a manner as to produce justice, good outcomes, or workable and fair solutions to social and political problems, and not be inhibited by the constraints of constitutional text, structure, and history--stare decisis corrupts and undermines such an interpretive theory, too. After all, why should an interpreter be bound by precedents that stand in the way of one's conception of justice if one is not bound by the language and original meaning of the Constitution itself? It would be silly to let errant (on these criteria), unjust precedents block the way, especially if the Constitution itself is not allowed to do so.
One can, I submit, play this parlor game with any and every theory of constitutional interpretation. If one has a theory of stare decisis that permits precedent decisions to have genuine decision-altering weight (3)--that is, if precedents dictate different results than the interpreter otherwise would reach in the absence of such precedents--then stare decisis corrupts the otherwise "pure" constitutional decision-making process. This rule (may I call it "Paulsen's Rule"?) cuts across all different interpretive methodologies. Posit an approach to constitutional interpretation that yields what, on that theory, is the correct interpretation of the Constitution. (4) Then, add a theory of stare decisis that accords decision-altering force to precedents that would otherwise be thought wrong under that approach to constitutional interpretation. The result is a deviation from the (by hypothesis) correct interpretation of the Constitution.
This should be a source of considerable concern to the defender of the interpretive theory in question (whatever it is). Stare decisis not only impairs or corrupts proper constitutional interpretation. Stare decisis is unconstitutional, precisely to the extent that it yields deviations from the correct interpretation of the Constitution! It would have judges apply, in preference to the Constitution, that which is not consistent with the Constitution. That violates the premise on which judicial review rests, as set forth in Marbury. If one accepts the argument for judicial review in Marbury as being grounded, correctly, in the supremacy of the Constitution (correctly interpreted) over anything inconsistent with it, and as binding the judiciary to enforce and apply the Constitution (correctly interpreted) in preference to anything inconsistent with it, then courts must apply the correct interpretation of the Constitution, never a precedent inconsistent with the correct interpretation. It follows, then, that if Marbury is right (and it is), stare decisis is unconstitutional. (5)
There is one possible exception to this conclusion, and a few possible variations on it. You've probably been thinking of one or another of them already, loading up to refute Paulsen's Rule. …