[Stare decisis] is a maxim among ... lawyers, that whatever has
been done before may legally be done again: and therefore they take special
care to record all the decisions formerly made against common justice and the
general reason of mankind.
— Jonathan Swift, Gulliver’s
How stare decisis Subverts the
2000 June 10
One of the most important doctrines in Western law is that of stare
decisis, a Latin term of art which means "to stand by decided cases; to
uphold precedents; to maintain former adjudications". In modern jurisprudence, however, it has come to take
on a life of its own, with all precedents being presumed to be well-founded,
unbiased legal decisions, rather than political decisions, and presumed to have
both the authority of the constitutional enactments on which they are based, plus that
of the precedents on which they are based, so that later precedents are
presumed to be more authoritative than earlier ones.
The doctrine also tends to give great weight to the opinion in the case,
even to the point of treating the opinion as though it was law, even though
only the order and findings have the actual force of law, and only in that
case, and an explanation of how the decision was reached is only dictum,
or commentary. This means that a poorly-worded opinion can define a set of
legal positions that exceed the bounds of the underlying constitutional enactments, and
become the basis for future precedents, as though they were constitutional enactments
themselves. The problem is exacerbated by the failure of judges to clearly
delineate the boundaries between edict and dictum.
The doctrine tends to disfavor legal argument that precedents were
wrongly decided, especially if they are precedents established at a higher
level in the appeals hierarchy, and to demand the litigants "distinguish" their
cases from adverse precedents, arguing that those precedents do not apply to
the present case because of elements that make it different from the cases on
which the precedents were established. This can be very difficult to do if
there are a great many recent cases on the same issues which cover most of the
The situation can be made more difficult by the rules of most courts
which limit the length of briefs the litigants may file. In working backward
through a long line of wrongful precedents, a litigant can reach the length
limit before the argument can make it back to the foundations where the chain
of precedents began to drift away from its authority in the constitutional
The situation can be illustrated by the Venn diagram in Figure 1, in
which the first set A represents the set of legal positions consistent with the
Constitution, and the points outside the circle represent unconstitutional
positions. It is noted that the boundary of the set is fuzzy, representing the
ambiguity of interpretation at the boundary. The central point B' represents a
court decision whose opinion defines a set of legal positions consistent with
it, shown by the elliptical set with the letter B at the top, but a portion of
that set extends beyond the bounds of A. The opinion in the next decision C'
also falls within A and defines yet another region C of consistent positions,
but which extends beyond both A and B. Decision D' falls within C, but not A or
B, and further defines a consistency set that extends beyond A, B, and C. The
Decision E' doesn't lie within any of the regions defined by the previous
precedents, but its region of consistency overlaps D and barely C, the kind of
situation that might result from a legal argument that reaches to get a
political decision not based on precedent. Finally, the last decision F' is
based on E defines consistency set F but lies entirely outside A, B, C, and D.
The problem for jurisprudence, especially constitutional jurisprudence,
is how to get back within A when one's opponent's position is supported by F
and one cannot distinguish precedents taking the argument back to A within the
brief page limits. It may be almost impossible unless or until one can get the
case to the Supreme Court, which can ignore and reverse its own precedents, but
which can take only about 75 cases a year, and is reluctant to issue sweeping
opinions that can cover a large number of cases that might otherwise deserve to
be granted certiorari, but which will never make it because the litigants are
discouraged from making fundamental arguments that might work with the Supreme
Court but which would be disfavored by lower courts.
It is difficult to estimate how many unconstitutional legislative
provisions are adopted each year by Congress, but a plausible number is more
than 20,000, or about as many as the number of bills introduced each year.
There is simply no way that the federal courts can handle all the cases that
might arise under that many provisions. They are almost forced to rely on the
presumption of constitutionality of statutes, but members of Congress are
increasingly reluctant to restrain themselves from adopting legislation they
know to be unconstitutional, but which is supported by some of their
constituents, and passing the duty to the federal courts of striking
legislation that should never have been passed in the first place.
The way stare decisis is supposed to be used is indicated by the
definition of it in Bouvier's Law Dictionary of 1856, which is closer to
original practice and intent:
Stare decisis. To abide or adhere to decided cases.
2. It is a general maxim that when a point has been
settled by decision, it forms a precedent which is not afterwards to be
departed from. The doctrine of stare decisis is not always to be relied upon,
for the courts find it necessary to overrule cases which have been hastily
decided, or contrary to principle. Many hundreds of such overruled cases may be
found in the American and English books of reports. Mr. Greenleaf has made a
collection of such cases, to which the reader is referred. Vide 1 Kent,
Com. 477; Livingst. Syst. of Pen. Law, 104, 5.
This indicates that the way stare decisis is supposed to be used is to
define the boundaries of the constitutional enactments, as shown in Figure 2, where the
decisions B' ... L' lie on the fuzzy boundaries of the region of legitimacy A
and sharpen those boundaries. This is accomplished by opinions that do not
define a set of consistent propositions that extend beyond A. That is, every
judge is careful to anticipate all the ways the words of his opinion might be
misconstrued to support decisions beyond what is authorized by the constitutional
enactments, and in particular, the Constitution.
There would appear to be only two ways out of our present predicament:
Either the people must start electing different members of Congress, and demand
that they strictly comply with the Constitution, or else the courts, especially
the Supreme Court, need to start issuing sweeping opinions which overturn past
precedents and strike down entire blocks of legislation.
However, the drift away from constitutional legitimacy represented by
Figure 1 is not just the result of incompetence or confusion. There is a
faction which has tended to dominate the federal government, especially during
most of the 20th century, which has deliberately sought to extend precedents
beyond the bounds of original constitutional understanding. It has done this by
carefully selecting cases against weak or inadequately represented defendants,
appealing only those cases they are sure they will win, and framing the
arguments so that the judges often don't have a choice that is constitutional,
but must choose between two unconstitutional positions. Ordinarily this is
supposed to be guarded against by constitutionally protective parties filing
amicus curiae briefs to argue a strict constructionist position, but
such briefs are not always filed in important cases, or are often ignored by
The Supreme Court, beginning with the decision in United States v. Lopez, 514 U.S. 549
(1995), and continuing in 2000 with several decisions like United States v. Morrison, Docket 99-5 and
Jones v. United States, Docket
99-5739, which roll back the federal criminal legislation based on the Commerce
Clause, is nevertheless still unwilling to issue sweeping opinions, but prefers
to rely on narrowly constructed opinions that have the effect of introducing
confusion and conflict into the system of precedents, perhaps in the hopes that
lower courts will seize on them to create still more conflicts, which the
Supreme Court will then only have to decide among, without drawing as much
controversy to themselves as they would if they issued sweeping opinions.
By treating court opinions as though they are general law, and not just
law for a particular case, we become accomplices in delegating legislative
powers to judicial officials, which is forbidden by Art. I Sec. 1 of the U.S.
Constitution and similar clauses of state constitutions, which delegate
legislative powers exclusively to the legislative branch, and allow for no
delegation of legislative power to other branches.
There is a fundamental logical problem with stare decisis as it is
currently practiced, which is that it is a logically separate system of propositions that
is independent of, and potentially inconsistent with, constitutional
who takes an oath to uphold the written constitution is bound to ignore
precedents in conflict with it, and to rest decisions strictly on propositions that are
logically derived from constitutional enactments, considering precedents only where they
sharpen ambiguities in the language of the written enactments. To treat precedents as
superior to constitutional enactments is to introduce contradictions into the law, and in
any system of logical propositions, acceptance of a single contradiction accepts
all contradictions, rendering every proposition logically undecidable. Contrary to
the view of some judges, the law must be logical, or it is not law.
There are two variants on the doctrine of stare decisis. The problem
we have discussed here is with the strong form, which treats precedents as
binding. However, there is a weaker form, which treats precedents as
merely persuasive. In this second variant, a dissenting opinion could be
more persuasive than the prevailing opinion, if the person citing it agreed with
it. In this variant, precedent becomes merely a convenient way to save time and
words by citing the reasoning in another case, saying "My reasoning is similar
to that", and nothing more. Historically, what came to be treated as binding
started as persuasive. Returning to treatment of precedents as merely persuasive
would solve the problem discussed here, but history shows us that judges are
prone to drift back to treating them as binding unless some corrective mechanism
is instituted to prevent it. Finding such a check would then be an essential
component of any lasting reform.
Stare decisis is the way judges seek the safety of the herd. We
need to demand they exhibit more courage, and return to fundamental principles,
resorting to stare decisis only when the positions lie on the fuzzy
boundary of the region of legitimacy.
1. Henry Campbell Black, A Law Dictionary, 2nd
ed., New York: West Pub., 1910.
2. John Bouvier, A Law Dictionary, Revised Sixth
3. Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23, 24 (1994).
4. Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Ave Maria L.R. 1 (2007).