Stare Decisis Is Not an Amendment Power

Stare decisis - Latin for "to stand by things decided" - has a pleasant, conservative ring. It sounds like humility. It sounds like restraint. But in modern constitutional law, it has become something far less noble: a way to amend the Constitution without going through Article V, without the consent of the governed, and frequently without even admitting that an amendment has occurred. Most discussions of precedent treat it as if it were a constitutional command. It is not. The Constitution is the supreme law of the land. The Court's prior opinions are not. A bad decision does not become good merely because it is old, popular, or convenient. When judges treat stare decisis as a higher law, they quietly replace the Constitution as written with what the last several justices felt like doing. That is not a republic of laws. That is a judicial convention with no adjournment.

I want to be clear about what I am not saying. Precedent has genuine value. But we have allowed that value to be inflated into something the Founders never intended. And in doing so, we have handed nine unelected judges an amendment power the Constitution deliberately denies them.

The Honest Function of Precedent

Alexander Hamilton wrote in Federalist No. 78 that judges should be "bound down by strict rules and precedents, which serve to define and point out their duty." That is a real insight, and I have no quarrel with it. Precedent can discipline a judge, promote stability, and protect legitimate reliance interests - contracts, property expectations, family arrangements, criminal procedure.

But notice what Hamilton did not say. He did not say a judge should follow a precedent contrary to the Constitution. He said precedents should define a judge's duty. A precedent that contradicts the text cannot define the duty; it distorts it.

A useful precedent is like a well-worn fence line. It shows where the boundary has been understood. But when the fence line is drawn across the neighbor's property, the fact that it has been there for fifty years does not move the deed. In constitutional law, the Constitution is the deed. Precedent is only a map. When the map disagrees with the deed, the map must yield.

That is not a radical view. It is the only view that keeps the judicial power within the boundaries the Constitution establishes.

The Sunk-Cost Fallacy in Black Robes

Here is the deeper problem rarely discussed: much of modern stare decisis doctrine is the sunk-cost fallacy wearing judicial robes. A rational person does not keep throwing money into a failing project simply because he has already spent a fortune on it. The economist asks one question: What is the right decision going forward? But the Supreme Court often says the opposite: We cannot correct this because we have been wrong for a long time, and people have come to rely on the error.

That is not legal reasoning. That is institutional vanity.

Henry Hazlitt's seen and unseen insight from Economics in One Lesson applies perfectly here. The seen benefit of precedent is continuity. The unseen cost is the constitutional principle that remains buried, the liberty that remains denied, and the separation of powers that remains disfigured. The longer the error stands, the more the Court uses its own past mistake as evidence that the mistake must continue. That is how judges compound error instead of correcting it.

Consider Plessy v. Ferguson. For nearly six decades, the Court stood by separate but equal. Stare decisis told Americans that the Fourteenth Amendment's guarantee of equal protection did not mean what it plainly said. Generations lived under that false boundary. When Brown v. Board of Education finally came, the Court did not apologize to precedent; it corrected it. If stare decisis had been treated as sacred, Plessy would still be law. That is not stability. That is an injustice with longevity.

The same pattern shows up in Wickard v. Filburn, the 1942 case that stretched the Commerce Clause beyond any reasonable reading of the text. The Court said a farmer growing wheat on his own land to feed his own animals was subject to federal regulation because his activity, taken in the aggregate with similar activities, could affect interstate commerce. That decision effectively erased the idea that Congress has only enumerated powers. Yet today, when anyone questions the scope of federal authority, the standard defense is not the text of Article I. It is precedent. Wickard has been cited so many times that its longevity is treated as its own justification.

That is the sunk-cost fallacy in action. Every additional year of error becomes another argument for continuing the error.

The Article V End-Run

The most dangerous feature of precedent-worship is that it shifts the amendment power from the people to a body of nine unelected judges.

Article V is deliberately difficult. A constitutional amendment requires two-thirds of both houses of Congress and three-fourths of the states. That is not an accident. The Founders made amendment hard because fundamental law should not change with the passions of the moment.

But consider what happens when the Supreme Court hands down a decision that departs from the text. The only formal corrective is an Article V amendment - a process far more demanding than the five votes that created the problem in the first place. If the Court then says, "But we will not overrule it because of stare decisis," it unilaterally raises the price of constitutional restoration to a level the people may never be able to pay.

That is an Article V end-run. The Court effectively amends the Constitution by majority vote, then locks the amendment in place with precedent, and tells the people, If you want your old Constitution back, go get two-thirds of Congress and three-fourths of the states. The Founders never vested that much power in any court. Article III gives judges the power to decide cases, not to make amendment a one-way ratchet toward judicial supremacy.

The modern example of this is the abortion jurisprudence that ran from Roe v. Wade through Planned Parenthood v. Casey. Roe was a constitutional invention - no honest reader of the Constitution can find a right to abortion in its text, structure, or original meaning. But Casey in 1992 rested heavily on stare decisis. The joint opinion argued that overruling Roe would undermine the Court's legitimacy and public faith in the judiciary. That is not a legal argument. It is a political one dressed in a robe. It assumes the Court's authority rests on public approval rather than on fidelity to the Constitution.

When Dobbs v. Jackson Women's Health Organization finally returned the abortion question to the people and their elected representatives, the outcry from the legal establishment was not primarily that the Constitution demanded the Roe result. It was that the Court had abandoned precedent. That tells you everything. The real substantive argument had been lost decades earlier. What remained was the idea that the error itself, because of its age and the reliance built upon it, had to stand. That is not constitutional law. That is the felt necessity of permanently protecting one side's preferred outcomes.

Originalism's Proper Answer

Justice Antonin Scalia showed the way. He was not a nihilist about precedent. He believed courts should respect it, especially in statutory cases where Congress can fix a mistaken interpretation with ordinary legislation. But he drew a firm line in constitutional cases: when a prior decision conflicts with the text and original meaning of the Constitution, the text wins. Precedent may be persuasive; it is not authoritative over the document itself.

That is the only position consistent with the judicial oath. A judge swears to support and defend the Constitution, not the collected opinions of previous courts. The Constitution can be amended only by the people, not by the gradual sedimentation of mistaken decisions.

The critics of originalism sometimes complain that it means being ruled by dead white men. But that charge misses the real issue. Originalism submits to the ratified text of the sovereign people. Precedent worship submits to the errors of dead judges. The first is republican self-government. The second is rule by a judicial priesthood - sometimes wise, sometimes not, but always unaccountable.

When a court follows a mistaken precedent instead of the text, it is not being prudent. It is being unfaithful. And the damage compounds because each unfaithful decision becomes a precedent for the next departure. Over time, the Constitution ceases to be a fixed law and becomes a Rorschach test for whichever justices happen to hold a majority.

The Proper Default

So where should the line be drawn?

Statutory precedent deserves substantial respect because Congress can act. If the Court misreads a statute, the people's elected representatives can correct the mistake. The corrective machinery is close, responsive, and ordinary. In that context, stability is worth a great deal and judicial humility means letting Congress decide whether to fix the error.

Constitutional precedent deserves far less respect because the corrective machinery is almost entirely absent. When the Court misreads the Constitution, the only realist cure is for the Court itself to say so. That imposes on constitutional precedent a higher duty of correctness, not a higher duty of permanence. The worst thing we can do is give the most difficult-to-correct errors the most protection.

The rule is simple enough: follow the text. When precedent comports with the text, it is a useful guide. When it does not, it is an obstacle to be removed, not an inheritance to be protected.

Stare decisis is a tool of stability. It is not a license to amend the Constitution. When a prior decision is wrong, "we have been wrong for a long time" is not an argument for continuing the error. It is an argument for finally getting it right.

A court that cannot correct its own mistakes is not a court of law. It is a caretaker of accumulated errors. The American constitutional order deserves better. It deserves judges who treat the Constitution as the supreme law - and their own prior opinions as what they are: fallible human judgments, useful when right, dispensable when wrong.