The Conflict Between Stare Decisis and Overruling in Constitutional Adjudication
29 Pages Posted: 17 Sep 2013 Last revised: 18 Sep 2013
Date Written: July 7, 2013
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.
Keywords: precedent, constitutional law, overruling, constitutional adjudication
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