A Stare-Down on Stare Decisis

BY MAXIMILLIAN AMSTER

Professor Paulsen at the Federalist Society debate.

The Harvard Federalist Society’s latest debate pitted the University of Minnesota’s Professor Michael Stokes Paulsen against Harvard Law’s own Professor Richard Fallon. The two argued the merits of stare decisis, the former taking the negative and the latter taking the affirmative. The heady wine of constitutional law was a perfect compliment to the savory pizzas, including cheese, meatball, sausage, Hawaiian, pepperoni, and mushroom. The combination sated both the intellectual and the bodily appetites of the seventy-plus students present.

Professor Paulsen, who earned his B.A. at Northwestern and his J.D. at Yale, opened the debate. He began by noting the near-universal popularity of stare decisis, or the following of court precedent. Stare decisis means “stand by things decided,” and is short for the full phrase “stare decisis et non quieta movere,” meaning “stand by decisions and do not move that which is quiet.”

Paulsen pointed out that conservatives are often attracted to stare decisis because it feels traditional and stable, and that liberals are attracted to it – well – because it was the only basis for upholding Roe. He argued that, at a very fundamental level, it is more important that our justices be right than consistent. He also argued that the supporters of stare decisis should be true to their own principles and follow that uber-precedent Marbury v. Madison, acknowledging the justices’ solemn obligation to faithfully interpret the Constitution as the supreme law of the land; supreme even to previous judges’ interpretations of it.

Finally, Paulsen questioned the value of stare decisis as a matter of policy, pointing out that it is never followed absolutely and therefore adds nothing to that pre-existing respect given to precedent that is part of our common-law system.

Professor Fallon, who earned both his A.B. and his J.D. at Yale, responded with a vigorous attack on originalism, which he saw as the crucial starting-point for Prof. Paulsen’s theory. Prof. Fallon cited a parade of horribles ensuing from originalism, claiming that if we accepted Prof. Paulsen’s logic we would have no paper money or Social Security, and maybe no valid Constitution (because the ratification of the Constitution arguably violated the Articles of Confederation). Rather, he argued, “law is law because we accept it as such,” and therefore interpretations of the Constitution, embodied in judicial decisions, are as binding as the text itself. Thus, he concluded, current judges are no more authorized to substitute their own interpretation than that of their predecessors then they are to disregard the Constitution itself.

The two then responded for five minutes each, debating mostly the merits and demerits of originalism rather than stare decisis proper. Prof. Fallon characterized originalism as an extreme minority position to be contrasted with the fact that every Supreme Court justice ever to take the bench has accepted some form of stare decisis. Prof. Paulsen argued that Prof. Fallon’s parade of horribles was a gross caricature and by no means the inevitable product of a robust originalism. The two also fielded questions and many statements of the audience members’ own theories, posed as questions. One student asked Prof. Fallon exactly whose consent mattered in his positivism. Fallon explained the way law works in terms of concentric circles, with judges on the innermost circle promulgating the law through their opinions, and those on the outermost circles, such as the public, acquiescing. The discussion ended on this curious note.

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