Stare Decisis and Originalism: Judicial Disengagement from the Supreme Court’s Errors

14 Pages Posted: 3 Apr 2012 Last revised: 10 Jul 2012

See all articles by Nelson Lund

Nelson Lund

George Mason University - Antonin Scalia Law School

Date Written: April 3, 2012


Originalism has had an uneasy relationship with stare decisis, but the two seem wedded in a way that precludes divorce and thus encourages adultery. Almost all originalists have decided, on pragmatic grounds, that the Supreme Court’s constitutional infidelities must sometimes be allowed to mature into de facto constitutional amendments. Writing in the Michigan Law Review, Jonathan Mitchell has proposed a new theory — based solely on the text of the Supremacy Clause rather than on pragmatic considerations — that purports to identify which interpretive infidelities must be rejected and which may be allowed to continue indefinitely.

According to this theory, it is unconstitutional for the Supreme Court to rely on stare decisis when, and only when, its precedents (a form of nonsupreme law) conflict with one of the three forms of supreme law identified in the Supremacy Clause. Accordingly, erroneous constitutional precedents may never be relied on to strike down a federal statute or to uphold a state law that conflicts with the supreme law of the land. Conversely, erroneous constitutional precedents may be relied on to uphold a federal statute or to strike down a state law.

Mitchell’s argument overstates the implications of the use of the word “supreme” in the Supremacy Clause, and it overlooks the principal purpose of the Clause. The better reading is that the Clause was meant to establish both the supremacy of federal law over state law and the obligation of state courts to respect that principle. The Supremacy Clause is simply silent about the Supreme Court’s duty when its precedents conflict with the original meaning of the Constitution.

Mitchell is right, however, to emphasize that the Supremacy Clause implicitly rejects the notion that Supreme Court opinions can be the supreme law of the land. Because the Clause is directed primarily at commanding state courts to follow the supreme law when it conflicts with a nonsupreme law, a reasonable inference is that state courts are not bound by erroneous Supreme Court opinions. If state supreme courts were to take that inference seriously, we might see a healthy intellectual competition between them and their federal counterpart. If all these contestants were to begin taking the Constitution more seriously than they do now, the nation could be the ultimate winner.

Keywords: abortion, Antonin Scalia, Article III, IV, V, VI, authority, Blaisdell, Bolling v. Sharpe, Congress, due process, Edmund Burke, Federalist Papers, Filburn, Home Building & Loan Association, James Madison, John Locke, legislative intent, legislature, Marbury, precedent, Roe, treaties, Wade, Wickard

Suggested Citation

Lund, Nelson Robert, Stare Decisis and Originalism: Judicial Disengagement from the Supreme Court’s Errors (April 3, 2012). George Mason Law Review, Vol. 19, No. 4, Summer 2012, pp. 1029-1041, George Mason Law & Economics Research Paper No. 12-33, Available at SSRN:

Nelson Robert Lund (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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