Precedent and Constitutional Structure

50 Pages Posted: 15 Feb 2018

Date Written: February 12, 2018


The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion.

Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical context. This understanding informs the treatment of precedent in concrete disputes as well as the locus of authority over the rules of precedent within the federal system. It also explains why the Supreme Court may legitimately reaffirm constitutional precedents even when they are flawed.

Keywords: Supreme Court, stare decisis, precedent, federal courts, constitutional law, constitutional theory, constitutional structure, judicial decision-making

Suggested Citation

Kozel, Randy J., Precedent and Constitutional Structure (February 12, 2018). Northwestern University Law Review, Vol. 112, No. 4, 2018, Available at SSRN:

Randy J. Kozel (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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