Stare Decisis: The Supreme Court’s Quiet Amendment Power

Here is a rule you will not find anywhere in Article III, the Bill of Rights, or the text of the Constitution itself: five justices in 1973 can bind your grandchildren decades from now, not because the Constitution says so, but because the Court once said so. The rule has a Latin name, stare decisis, which means to stand by things decided. Most Americans have never heard the phrase, yet it has become one of the most potent unenumerated powers in Washington.

We usually debate stare decisis as a contest between stability and chaos. That framing misses the deeper question. What is actually supreme, the written Constitution or the Court's memory of itself? I want to examine that doctrine from an angle too rarely discussed, because the usual argument treats precedent as a neutral housekeeping rule. It is not neutral. Under the right conditions, it functions as a quiet amendment power, a way for a handful of unelected judges to change the fundamental law without ever asking the people.

The text is silent, and that should bother you

Our constitutional order is supposed to be a government of laws, not of men. John Adams put it plainly, and the entire architecture of the American republic rests on that distinction. Nowhere does the Constitution grant the Supreme Court the power to bind future generations through its own prior interpretations. Article III vests the judicial power in the courts. It does not say the precedential power. The Supremacy Clause is even more instructive. Article VI declares that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land.

Notice what is absent from that list: judicial decisions. The Constitution is supreme. Federal laws made under it are supreme. Treaties are supreme. But the Court's prior opinions are not mentioned. They are not part of the constitutional text. That matters. In a written constitution, the only legitimate forms of law are the forms the document authorizes. Stare decisis is not one of them. None of this means precedent counts for nothing. But it does mean something the legal establishment would rather not admit. The doctrine's authority is only as good as the reasoning behind it. When precedent contradicts the text, it is not the text that should bend.

The ratchet only turns one way

Here is the structural problem with constitutional stare decisis as it is practiced today. A constitutional error can be created by as few as five unelected judges in a single case. But once that error exists, the burden of correcting it is enormous. If the Court refuses to correct itself, the only remaining remedy is a constitutional amendment under Article V, which requires two-thirds of both houses of Congress and three-fourths of the states.

Let that sink in. Five judges make a mistake. The people must then win supermajorities in every relevant political body to undo it. That is not stability. That is a judicial ratchet, a mechanism that locks in central planning by default and makes liberty the exception. This inverts the founding design. The Framers made the amendment process deliberately difficult because they wanted constitutional change to be rare, deliberate, and broadly consensual. Stare decisis, in the hands of an activist Court, makes constitutional change easy for five judges and almost impossible for the people. That is not a republic of laws. That is government by judicial inertia.

What we see and what we miss

Henry Hazlitt taught us the core lesson of economics: judge a policy by its effects on all groups over the long run, not just the visible benefit to a favored group in the short run. Stare decisis has a visible benefit. It creates predictability. People can order their affairs knowing that the Court is unlikely to reverse itself on a whim. Businesses rely on settled law. Families make decisions based on existing rules. That stability is real, and I do not dismiss it.

But the unseen cost is larger. Every time the Court refuses to correct an unconstitutional precedent because it is settled, it transfers a little more power from the people and their Constitution to a small body of permanent judges. Each uncorrected error becomes the foundation for the next one. Years pass. The original constitutional meaning fades. The precedent becomes the Constitution in practice, even if the text says otherwise. That is the long-run, unseen consequence: the slow replacement of written law with judicial memory.

Thomas Sowell often reminds us to judge policies by their actual incentives and results, not their stated intentions. The incentive created by modern stare decisis is clear. A justice who wants to impose a vision that cannot pass a legislature or an amendment need only win one case. Then the burden shifts to everyone else. That is not caution. That is accumulated power.

Where precedent belongs and where it does not

Let me be precise, because the objection writes itself. I am not arguing that precedent is worthless. In ordinary statutory interpretation and private common law, precedent provides genuine predictability. If Congress dislikes a statutory interpretation, it can pass a new law. The correction is comparatively easy. Stare decisis in that context is defensible, even useful.

Constitutional law is different. If the Court misreads the First Amendment, the Second Amendment, or the limits of federal power, the people cannot simply pass a corrective statute. The only remedy is an Article V amendment, or a future Court with the courage to say the prior Court was wrong. That is why constitutional stare decisis must be weakest, not strongest, when the prior decision contradicts the text and original meaning. Even the Supreme Court itself has admitted that stare decisis is not an inexorable command. The late Justice Scalia made the deeper point repeatedly. Erroneous constitutional decisions are especially dangerous precisely because they are so difficult to correct through the amendment process. That does not mean precedent counts for nothing. It means precedent never trumps the Constitution itself. A judge swears an oath to support the Constitution, not to obey the U.S. Reports.

The founders saw the trap

Jefferson warned about exactly this temptation. In an 1820 letter to William Charles Jarvis, he wrote that treating judges as the ultimate arbiters of all constitutional questions was a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. He was not speaking abstractly. He saw the danger of a self-perpetuating judicial elite whose errors become unamendable in practice. The Constitution was written to be amended by the people, not reinterpreted by a majority of nine.

Hamilton, in Federalist No. 78, famously described the judiciary as the least dangerous branch because it has neither force nor will, but merely judgment. But that description depends on judges acting as judges, interpreting the law, not as mini-lawmakers whose past rulings acquire constitutional status by repetition. The moment a court claims that its own prior opinions bind future generations even when those opinions contradict the text, it is no longer exercising judgment. It is exercising will.

The stability argument collapses under its own weight

The standard reply is predictable. Without stare decisis, the law would be unstable. Every new Court would overturn everything. The answer is twofold. First, the Constitution already has a solution to instability. It is called a written text with a fixed meaning. Originalism and textualism provide the stability. If judges would simply enforce what the Constitution actually says, the law would be more stable, not less, because the meaning would not shift with every election or every new justice.

Second, the real instability comes from letting constitutional law float free of the text. When precedent becomes the highest law, the Constitution means whatever the last five justices said it means. That is not stability. That is a slow-motion amendment process controlled by judicial appointment. The correction of Plessy v. Ferguson by Brown v. Board of Education is the proof. If the Court had treated stare decisis as an absolute command, separate but equal would have remained the law indefinitely. Ending that error required the Court to say plainly that the prior decision was wrong, and the Constitution means what it says. The Court's worst moments are not random. Dred Scott v. Sandford in 1857 tried to settle slavery by judicial decree. It took a war and three constitutional amendments to undo the damage. The precedent did not create stability. It created catastrophe. That is what happens when the Court mistakes its own pronouncements for the permanent law of the land.

The real choice

Stare decisis, rightly understood, is a counsel of humility. It tells a judge not to overturn a precedent lightly, because stability matters. But it becomes something else entirely when it forbids correction of clear constitutional error. It becomes a judicial amendment power. It allows five people in black robes to do what Article V requires supermajorities of the entire republic to accomplish. The Constitution is the supreme law of the land. The Supreme Court's prior opinions are not. Our constitutional republic was built to protect liberty against concentrated power, including the power of judges who mistake their own past rulings for the law itself. The moment a judge places precedent above the text, he is no longer enforcing the Constitution. He is enforcing himself. And that is not the rule of law. That is the rule of men with a Latin name.