The Conflict Between Stare Decisis and Overruling in Constitutional Adjudication
Neither Supreme Court Justices, nor scholars who have written on the subject, take the view that the Constitution constrains the Court’s power to overrule its constitutional precedents. This essay argues that the Fifth Amendment’s Due Process Clause requires a constitutional law of overruling. Moreover, it proposes such a law on the basis of a conjunction of Marbury v. Madison, Martin v. Hunter’s Lessee, and Cohens v. Virginia, together with Article III’s “case or controversy” requirement. I suggest that the Court should ask whether a precedent in question significantly impairs the constitutionalized Rule of Law. If it does, stare decisis would lapse for the Court, which then could freely consider whether to overrule. I argue that this approach provides due process, is conceptually sound, and is normatively attractive in the constitutional context.
Reconciling Originalism and Precedent
Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent. This Article challenges this common view of originalism and argues that nothing in the Constitution forbids judges from following precedent. First, the Constitution as a matter of judicial power incorporates a minimal notion of precedent. Second, the Constitution treats precedent as a matter of federal common law that it is revisable by congressional statute. Thus, the courts in the first instance and Congress ultimately have significant discretion over what precedent rules should be adopted. Having established that the original meaning of the Constitution does not forbid precedent, the next question is: what is the normatively best approach to precedent under originalism? As consequentialists, we argue that precedent doctrine should consist of rules that require precedent to be followed when doing so would produce net benefits and that require original meaning to be applied instead of precedent in other cases We then balance these benefits of following the original meaning with the benefits of following precedent. This Article, while not offering a full precedent doctrine, does recommend three specific precedent rules. First, precedent should be followed when it is necessary to avoid imposing enormous costs. Second, precedent should be followed when it is entrenched-when the precedent enjoys strong support that is comparable to that enjoyed by a constitutional amendment. Third, precedent should be followed when it corrects the results of a failure in the original super majoritarian process of making the Constitution, such as the exclusion of African Americans.
Abortion and the Constitution: the need for a life-protective amendment.
As a result of the recent congressional hearings held on proposed constitutional amendments designed to overturn the rulings of the United States Supreme Court concerning abortion, the abortion controversy has once again become a major topic of public interest. The author seeks to identify the two distinct areas of debate involved in the issue and to discuss, in particular, the central topic raised by many of the proposals-the rights of the unborn. It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law and forgets that what seem to him to be first principles are believed by half of his fellow men to be wrong . . .1 Abortion, the right to privacy, the right to life-these topics have been in the public eye since the decisions of the United States Supreme Court in Roe v. Wade2 and Doe v. Bolton.3 These decisions have not settled the abortion controversy: it continues in Congress, 4 in the courts,5 and in the media. 6 The subject matter is complex and may be debated at many levels. However, without a focus or common ground of discussion, efforts toward resolution inexorably lead to more debate, more confusion, and ultimately, frustration and anger for the parties involved.7