Precedent and Constitutional Structure

By Kozel, Randy J. | Northwestern University Law Review, January 1, 2018 | Go to article overview

Precedent and Constitutional Structure


Kozel, Randy J., Northwestern University Law Review


INTRODUCTION

Judicial precedent is defeasible and it is indispensable. The Supreme Court commonly explains that respect for precedent is important, and even necessary, to the rule of law. At the same time, the court cautions that no precedent is beyond reconsideration and the doctrine of stare decisis is not an "inexorable command" to endure the mistakes of the past.1 Standing by precedent is "the preferred course" for reasons sounding in consistency, predictability, efficiency, and "the actual and perceived integrity of the judicial process."2 Still, preferred is different from required.3 Sometimes there are good reasons to depart from the past. When there are, the pull of precedent can give way.

There is no inherent contradiction in this vision of precedent. Fidelity to prior decisions can be integral to the rule of law and rebuttable for compelling reasons. The mystery is not how these principles coexist but where they come from. The Constitution does not expressly discuss the role of judicial precedent or the doctrine of stare decisis. While some commentators argue that deference to precedent is encompassed in provisions like Article III's "judicial Power," not everyone agrees.4 Another possibility is that the Constitution takes no position on precedent, implicitly authorizing courts to apply common law principles of stare decisis.5 Or maybe the Constitution actually forbids deference to precedent, at least when a decision deviates from the document's meaning as properly understood.

These possibilities are intriguing, and the scholarship analyzing them is insightful and instructive. But I want to approach the connection between precedent and constitutional law from a different angle. My claim is that we can view deference to precedent as an implicit constitutional principle that coheres with key features of the framework of American government.6 This vision of precedent as a "basic self-governing principle within the Judicial Branch" has arisen from time to time in Supreme Court opinions.7 My aim is to give it sustained attention and, in doing so, to take a step forward in understanding the constitutional dimensions of stare decisis.

Defending precedent as a constitutional principle does not fully determine how sharply past decisions should constrain future courts. Neither does my argument fully determine the set of considerations that can justify overruling prior decisions. Even so, studying the constitutional foundations of precedent helps to define the rules of engagement for courts tasked with applying old decisions to new facts. It also offers lessons about what federal judges must do, may do, and cannot do in their treatment of precedent. And the same goes for Congress. To take an example to which I return below, if 791

the Constitution requires presumptive deference to precedent, Congress has no power to eliminate that presumption. But to the extent stare decisis rests on a legal foundation apart from the Constitution itself, the doctrine may be susceptible to congressional abolition. Putting these principles together, I will contend that while legislation can affect the various factors that are included in the doctrinal calculus-much like it affects the federal courts' admission of evidence8-the Constitution implies a baseline presumption of deference that even Congress cannot remove.

Recognizing the constitutional salience of precedent also responds to the objection that deferring to flawed decisions is unlawful. While the Constitution does not contain a "Stare Decisis Clause,"9 the legal validity of deference arises by implication from the Constitution's structure, text, and historical context. This approach helps to square the Supreme Court's view of "respect for precedent" as "indispensable"10 with its seemingly discordant description of stare decisis as "a policy judgment."11 Fidelity to precedent reflects a policy judgment rather than an unflinching command in the sense that it sometimes gives way: namely, when there is a special justification for overruling. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Precedent and Constitutional Structure
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.