Helvidius at Ex Post raises some of the same questions I've been wondering recently, which have to do with stare decisis.
Stare decisis is not mandated by the Constitution. It is, according to Justice Frankfurter, "a principle of policy." Not many people think, however, that precedent should play no role in constitutional adjudication. Robert Bork concedes in The Tempting of America that at some point a previous, incorrect decision may "have become so embeeded [sic] in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed."
Does this mean, however, we're to apply SD consistently, and in every case where precedent speaks?-Regardless of the outcome?
I will share with you my comment to his? post.
My initial thought on the matter is that stare decisis is normatively pragmatic. I mean by that, SD, though a longstanding legal doctrine (the normative part), is a pragmatic one. Given our common law system, which for longer than has otherwise been the case worked by the hands of (philosophical) pragmatists, SD's status as foundational and integral to our legal system is no mystery. It is, however, unnerving for non-pragmatists because it is so inconsistently invoked, as the post mentioned. Inconsistent application undermines the rule of law and another longstanding legal doctrine, the principle of legality. Also, an originalist--at least this one--cannot accept an unquestioned application of SD because it may be the case that in applying SD, we're adding insult to injury. I believe Justice Thomas was trying to say as much in his dissent in Kelo.
Upholding Roe on the grounds of SD poses the same problem Justice Thomas illustrates in Kelo.
