Methodological Stare Decisis and Constitutional Interpretation

Abstract

This chapter assesses the Supreme Court's reluctance to give stare decisis effect to its methodologies of constitutional interpretation. While the Court claims to presumptively follow the substantive results of its prior constitutional decisions, it has never considered itself bound by the interpretive approaches (e.g., originalism, textualism, or "living constitutionalism") used to reach those decisions. The chapter suggests an explanation for this somewhat mysterious state of affairs. A rule of methodological stare decisis would require the Court to employ the same interpretive method in a huge category of cases (most likely all cases involving the Constitution), which would generate unpredictable results in many cases the Court could not reasonably anticipate, thus aggravating the drawbacks of stare decisis. At the same time, the usual benefits of stare decisis (such as predictability and stability) would not be well served. Where the Court can reasonably follow its methodological precedent is with respect to "decision rules" -- methods, such as the tiered scrutiny framework, for implementing rather than determining constitutional meaning -- because those rules are relatively determinate and can be contained within narrowly defined areas of substantive doctrine.

Keywords: stare decisis, methodogical stare decisis, interpretation, constitutional theory, interpretive methodology

JEL Classification: K1, K4