Stare Decisis

Mike Paulsen has a provocative post on Balkinization explaining why adherence to constitutional precedent is squalid.   It seems like a radical idea at first -- especially when he claims that adhering to constitutional precedent is unconstitutional.  The argument, however, seems sensible enough:

Stare decisis is a charade. The doctrine, taken seriously, suggests that judges should deliberately decide cases in ways they otherwise are fully persuaded are wrong, on what they otherwise would regard as the proper interpretive criteria -- sometimes. (When that "sometimes" is is itself a disputed aspect of the doctrine.) Taken seriously, the doctrine is unconstitutional: it suggests that a court should prefer the (by hypothesis) faithless earlier departure from the Constitution to the correct understanding of the Constitution, in situations where they conflict. This is directly contrary to the reasoning of Marbury v. Madison -- a sound precedent if ever there were one. (Marbury is right in its argument for judicial review not because it is Marbury, but because it is right.)

It turns out that not all originalists have this view.  For example, McGinnis & Rappaport (both originalists who embrace stare decisis) furnish this argument in a forthcoming article in Constitutional Commentary:

While [some] assume[] that originalism and precedent conflict, that will not be true to the extent that the Constitution incorporates or allows for precedent, which it appears to do in two ways.  First, the concept of “judicial power” in Article III may be best understood as requiring the judiciary to decide cases in accordance with some notion of precedent.  Second, the Constitution may treat precedent as a matter of federal common law that is modifiable by federal statute – thereby allowing for precedent without compelling it.  Both of these interpretations are supported in different ways by the fact, which we do not have the space to show, that there was a general acceptance of some aspects of precedent when the Constitution was adopted.