Mostly Unconstitutional: The Case Against Precedent Revisited

Abstract

In Part I of this Article, the author briefly recaps the argument against precedent that the author sketched in The Constitutional Case Against Precedent. Although the author’s purpose here is to refine that argument, the author still believes that the original argument is right in most particulars, and it still functions as a prima facie case against the use of precedent in constitutional interpretation. In Part II, the author surveys different possible grounds for the practice of precedent. In Part III, the author dismisses the possibility that the Constitution or some other controlling legal source affirmatively commands the use of precedent in constitutional cases. In Part IV, the author argues that the Constitution only permits the use of precedent in constitutional cases in very limited circumstances. The author concludes that there is at best a very weak constitutional case for the doctrine of precedent, and it is at best a case for a very weak doctrine of precedent.

Keywords: precedent, stare decisis, constitution