Overrule Stare Decisis

National Affairs, Fall 2020

14 Pages Posted: 8 Jun 2021

See all articles by Josh Hammer

Josh Hammer

Edmund Burke Foundation; Newsweek

Date Written: September 22, 2020

Abstract

Few doctrines in originalist constitutional scholarship are as contested as stare decisis—that is, the weight to which precedent ought to be, or constitutionally even can be, considered by judges and other constitutional actors when such precedent conflicts with the original understanding of a specific constitutional provision in question.

This essay, written in the aftermath of Justice Clarence Thomas's clarifying concurring opinion in the 2019 case of Gamble v. United States, argues that the Constitution itself affirmatively forbids reliance upon demonstrably erroneous precedent that conflicts with the original understanding of the Constitution. It argues that originalists who argue for a greater role for precedent in constitutional adjudication, such as the late Justice Antonin Scalia, err in doing so.

Keywords: U.S. Constitution, Constitution, constitutional law, stare decisis, precedent, jurisprudence

Suggested Citation

Hammer, Josh, Overrule Stare Decisis (September 22, 2020). National Affairs, Fall 2020, Available at SSRN: https://ssrn.com/abstract=3860314

Josh Hammer (Contact Author)

Edmund Burke Foundation ( email )

Newsweek ( email )

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