World Blog by humble servant.The Problem with Precedent A fourth technique of constitutional interpretation is to look at precedent. This gives rise to incredible confusion, for the simple reason that the precedents hopelessly contradict one another and frequently contradict the document itself. The problem with many bad Constitutional Law courses is that they are all about the precedents, and not at all about the Constitution. December 11, 2018 The Problem with Precedent A fourth technique of constitutional interpretation is to look at precedent. This gives rise to incredible confusion, for the simple reason that the precedents hopelessly contradict one another and frequently contradict the document itself. The problem with many bad Constitutional Law courses is that they are all about the precedents, and not at all about the Constitution. The short answer to the problem of precedent is that some precedents are sound—helpful interpretations of the Constitution that can help resolve doubtful points—and other precedents are unsound, unhelpful misinterpretations of the Constitution’s text, structure, and history. That’s really all there is to it. The sound precedents are useful guides; the unsound ones should be regarded as having no authority or validity whatsoever. Indeed, and ironically, there is one notable, sound precedent that clearly refutes any argument for deliberately following unsound precedent: the famous foundational case of Marbury v. Madison (1803). Marbury is one of the very first cases most students learn in constitutional law class. It holds—correctly, on textual and structural grounds—that if an act of Congress violates the Constitution, courts must follow the Constitution and not the faithless act of Congress. In colloquial terms, the Court must “strike down” unconstitutional acts of Congress. What often goes unnoticed, however, is that exactly the same reasoning applies to judicial decisions that conflict with the Constitution. If the Constitution says one thing and judicial precedent says another, a subsequent court, by the reasoning of Marbury, must follow the Constitution and not the erroneous judicial precedent. The much-beloved common-law doctrine of stare decisis—the policy of following prior decisions of earlier courts—makes no sense when applied to a written constitution intended to serve as supreme law. The Constitution is supreme, not the judicial decisions misinterpreting it. Besides, the doctrine of stare decisis has never been thought absolute, and never been thought required by the Constitution. So the choice of when to follow precedent and when not becomes wildly unpredictable and seemingly arbitrary. A delicious further irony is that the Supreme Court’s current doctrine of stare decisis appears not to require adherence to the Supreme Court’s current doctrine of stare decisis. So I say unto you law students (and citizens): Consider precedent for what it may be worth in a particular instance as a guide to interpretation, but disavow entirely the judicial doctrine of stare decisis—the utterly indefensible practice of (sometimes!) following precedents that you are otherwise convinced are simply wrong. Truly I say unto you: If the Constitution says one thing and the judicial precedents say something else entirely, you must go with the Constitution every time. We’re almost done with my short mini-review / explosion of “Constitutional Law.” You now know most of the legitimate—and one of the illegitimate—techniques of constitutional interpretation, and how to apply them to cut through the muck of the Con Law course. Tomorrow, we’ll finish the lesson with a couple more key points: the (obvious) illegitimacy of purely policy-driven, result-oriented “interpretation,” and an important principle concerning what to do when a provision of the Constitution is vague, ambiguous, or simply admits of a range of legitimate interpretations or applications.