Stare Decisis-We're going to be hearing a lot more about this

With Kennedy’s retirement we’re already hearing from the left that basically every good thing that has happened in the last fifty years is going to be erased with the appointment of another constitutional conservative/constructionist/textualist etc.

I’ve heard the phrase “Stare Decisis” thrown around by more pundits in the last few days than I have in the last couple of decades or more.

Basically all the term means is the standing of prior precedents. There are two primary schools of thought on the subject, the first being that precedents should be treated as law, and the other that they should be considered but that they have no force of law outside of the specific case cited.

In the modern era more and more for various reasons judges and justices defer to precedent in their decisions either out of laziness or a desire to further change existing law and the constitution and in some cases simply out of ignorance.

With all of this discussion I decided to do some research on the subject and came across a great article that explains how Stare Decisis has been used both intentionally and coincidentally to more and more subvert our constitution.

It’s a good read in prep for all of the handwringing and wailing that we’re going to have to listen to over the next few months until the new justice is seated.


How stare decisis Subverts the Law

Jon Roland
2000 June 10

One of the most important doctrines in Western law is that of stare decisis, a Latin term of art which means “to stand by decided cases; to uphold precedents; to maintain former adjudications”.[1] In modern jurisprudence, however, it has come to take on a life of its own, with all precedents being presumed to be well-founded, unbiased legal decisions, rather than political decisions, and presumed to have both the authority of the constitutional enactments on which they are based, plus that of the precedents on which they are based, so that later precedents are presumed to be more authoritative than earlier ones.

The doctrine also tends to give great weight to the opinion in the case, even to the point of treating the opinion as though it was law, even though only the order and findings have the actual force of law, and only in that case, and an explanation of how the decision was reached is only dictum, or commentary. This means that a poorly-worded opinion can define a set of legal positions that exceed the bounds of the underlying constitutional enactments, and become the basis for future precedents, as though they were constitutional enactments themselves. The problem is exacerbated by the failure of judges to clearly delineate the boundaries between edict and dictum.

The doctrine tends to disfavor legal argument that precedents were wrongly decided, especially if they are precedents established at a higher level in the appeals hierarchy, and to demand the litigants “distinguish” their cases from adverse precedents, arguing that those precedents do not apply to the present case because of elements that make it different from the cases on which the precedents were established. This can be very difficult to do if there are a great many recent cases on the same issues which cover most of the possibilities.

The situation can be made more difficult by the rules of most courts which limit the length of briefs the litigants may file. In working backward through a long line of wrongful precedents, a litigant can reach the length limit before the argument can make it back to the foundations where the chain of precedents began to drift away from its authority in the constitutional enactments.

The situation can be illustrated by the Venn diagram in Figure 1, in which the first set A represents the set of legal positions consistent with the Constitution, and the points outside the circle represent unconstitutional positions. It is noted that the boundary of the set is fuzzy, representing the ambiguity of interpretation at the boundary. The central point B’ represents a court decision whose opinion defines a set of legal positions consistent with it, shown by the elliptical set with the letter B at the top, but a portion of that set extends beyond the bounds of A. The opinion in the next decision C’ also falls within A and defines yet another region C of consistent positions, but which extends beyond both A and B. Decision D’ falls within C, but not A or B, and further defines a consistency set that extends beyond A, B, and C. The Decision E’ doesn’t lie within any of the regions defined by the previous precedents, but its region of consistency overlaps D and barely C, the kind of situation that might result from a legal argument that reaches to get a political decision not based on precedent. Finally, the last decision F’ is based on E defines consistency set F but lies entirely outside A, B, C, and D.

The problem for jurisprudence, especially constitutional jurisprudence, is how to get back within A when one’s opponent’s position is supported by F and one cannot distinguish precedents taking the argument back to A within the brief page limits. It may be almost impossible unless or until one can get the case to the Supreme Court, which can ignore and reverse its own precedents, but which can take only about 75 cases a year, and is reluctant to issue sweeping opinions that can cover a large number of cases that might otherwise deserve to be granted certiorari, but which will never make it because the litigants are discouraged from making fundamental arguments that might work with the Supreme Court but which would be disfavored by lower courts… .!OpenDocument

It isn’t a long read and it’s well worth the time.



10 char

So you now begrudgingly admit you posted it as a personal shot at me. At least that’s progress.

As for the rest, you made the claim, back it up if you can.

Something’s wrong with the board. Quote button quotes the wrong posts.

I didn’t admit any such thing and don’t twist my words. It was a criticism of your post. I didn’t say anything about you personally.

Do you not get that criticism isn’t the same as personal attack?

Research Jon Roland. It’ll be good for you to do the work you should have done before posting his work.

Thank you for posting the article. Although the first responses to it seem to have come out of left field (ha, that turned into a pun) :wink:

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It was expected. Generally whenever anything comes up that disturbs the lefties the OP and the original article being discussed will both be attacked and subsequently then all we get is an attempt to derail the thread.

It went exactly as expected.

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Stare Decisis should only have standing when there is no doubt that it is predicated on textual law or Constitution. Its like " separation of church and state " or " every citizen is a member of the militia ". Neither of these are predicated upon textual law or Constitution, they are instances where a court inserted its own beliefs into law. This is tantamount to the court making law from the bench.

I’ll argue the latter. There’s clear evidence that the founders meant exactly that, “every man capable of bearing arms” constitutes, “the militia”.

Since the constitution doesn’t come with a glossary of terms we have to rely on the common meaning of same in the founding era.

Every man does mean every Citizen. Even then, laws written to control the arms that people not included as militia members would not be Constitutional. BTW, Congress establishes what constitutes the militia through laws. They do not include women, children below a certain age and men over a certain age, it is not open for a court to make that determination.

Grrrrr : does NOT mean every Citizen.

No, the militia already exists, it consists of every able bodied man capable of bearing arms. Congress has no authority over the unorganized militia, only over that portion that is called into federal service.

Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, §8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment , we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise … Armies”; “to provide … a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the militia,” §8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force.

Just like our right to keep and bear arms, congress did not create the militia, it already exists independent of any act of congress.

Pundits like to throw things back and forth. I have always heard stare decisis in a much narrower scope. You find that when the same facts are involved in more than one case. One jury can’t decide that there was a stop sign at a certain intersection and the next case decide that there was not a stop sign there.
Legal precedence, or establishing principles of law, are normally what make the Supreme Court important, not findings of specific facts.

I’ve always loved the way our host says “exculpatory” like it’s a new toy opened on Christmas morning.

I don’t think it’s out of laziness, haven’t read the artilce yet, just basically commenting on your opinion. I think it’s more to do with advancing their progressive agenda by using precedent case.

Interesting and must read, thanks for bringing this up.

It’s been a problem ever since I started following the court decisions/cases. And we all seen those increments as the court drift away from original intent.

How does a constitution die? One decision at a time.