The Personal Website of Mark W. Dawson

Stare Decisis and Constitutionality

Stare Decisis, the Latin for "to stand by a decision," is the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question that is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent (even when the trial judge believes it is "bad law").

It should be noted that this doctrine is only appropriate within the judicial system. Judges and judicial decisions must keep this in mind whenever there is a ruling by the judiciary. It does not mean that a judge can determine that a law is unconstitutional. Indeed, if a judge so decides the law is unconstitutional, it should be abrogated to preserve the liberties and freedoms of the people. The ultimate arbiter of the unconstitutionality of a law is a course that of the Supreme Court. This also constrains a judge from interpreting a law to suit their own opinion of the advisability of the law.

This doctrine has no standing when applied to legislative actions. Of course, the legislatures should consider the impact of changing the long-standing law. However, they should not feel constrained to keep, revoke, or change a law utilizing this doctrine. To do so would limit their responsibility to revoke, make, or modify law as they feel appropriate and constitutional.

Stare Decisis is very important for the smooth functioning of society and law, for, without Stare Decisis, the law would be chaotic as to what would be legal and proper. Consequently, societal and individual decisions could not be made without concern or fear of violating a law. Individuals, groups, organizations, and businesses need the stability of the law to make decisions and plan for the future.

In the last several decades', Stare Decisis is being utilized by the courts to avoid making decisions on contentious constitutional issues. Constitutional issues that need to be reexamine due to new information or societal changes that would impact the previous decision. Or, as one of our Founding Fathers has said:

"For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others".
  - Benjamin Franklin

Unfortunately, courts, including the Supreme Court, have often made incorrect decisions on matters of Constitutionally as well as in other decisions. When a court can determine that a decision was incorrect or needs to be reexamined in light of better information or fuller consideration, they should ignore Stare Decisis to set it right. This ignoring of Stare Decisis should not be done lightly, as it could disrupt society and legal precedents in a harmful manner. A judgment needs to be made as to whether the harm is greater by the continuing of current precedents or the harm is greater by setting new precedents. In the case of Constitutional issues, a lesser weight needs to be given Stare Decisis as all Judges and Justices need to remember that their primary duty and responsibility is the Constitution of the United States.

Upholding bad precedence makes for a bad law being retained. And the bad law being retained may be an infringement on our Constitutional ideals and Ideas or our Constitutional Rights. Therefore, Judges and Justices should be circumspect when applying Stare Decisis to Constitutional issues that arise before their court proceedings. We should also remember that:

“A judicial ruling of Stare Decisis to allow for the continuation of an unjust law or unconstitutional decision is just another means of imposing absolutism.”
 - Mark Dawson