Stare Decisis, Precedent, and the Constitution

• Date: 01 March 1956
• Published date: 01 March 1956
• DOI: 10.1177/106591295600900109
• Subject Matter: Articles

STARE DECISIS, PRECEDENT, AND
THE
CONSTITUTION
CHARLES AIKIN
University of California
NCE
AGAIN the United States Supreme Court is under attack.
The great tribunal is accused, among other things, of having ignored
&dquo;~
the controlling force of precedent, of having been faithless to the
established doctrine of stare decisis. Anglo-American judges have often
commented on this doctrine, particularly with regard to its application to
private law.’ However, in some minds there has been and continues to be
a confusion of the private law doctrine of stare decisis with the role of
precedent in constitutional law. This much is clear: ordinary law is con-
cerned with rules which can be applied with precision to the majority of
the legal problems that continually arise; constitutional law, on the other
hand, is concerned with doctrines; and rules in private law, unlike doctrines
in constitutional law, only occasionally compete with other rules for recog-
nition and acceptance by the courts. In the field of private law we demand
a degree of certainty that is not attainable -
nor would it be wholly desir-
able -
in the field of constitutional law.
The validity of every municipal ordinance and of every state and
national statute which intimately affects individual freedom or personal
rights is a subject of legitimate judicial inquiry in the light of current ideas
and understandings; and a considerable proportion of such legislation comes
up for judicial consideration. Careful students of American government
know that in such cases a judicial view of what is just in a constitutional
sense cannot be based solely on judicial precedent. The able and consci-
entious judge must consider other appropriate foundations for action. The
telling words of the present Chief Justice written in the school segregation
case sets forth this truth in positive language. He refused to &dquo;turn the clock
back&dquo; to old authority. &dquo;We must consider public education in the light of
its full development and its present place in American life throughout the
Nation,&dquo; he declared. &dquo;Only in this way can it be determined if segregation
in public schools deprives these plaintiffs of the equal protection of the
laws.&dquo; 2 Judges who in the past have searched for appropriate foundations
for their decisions in constitutional cases have added to judicial precedent
some consideration of what is politically appropriate, what history is
thought to teach, and what are the supposed economic realities. With the
1
See Rex v. Taylor, (1950) 2 K.B. 368 at 371. See also the dissent in Washington v.
Dawson, 264 U.S. 219 at 238.
2

Brown v. Board of Education, 347 U.S. 483 at 492-493 (1954).
87

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88
decision of the United States Supreme Court in Brown v. Board of Educe-
tion discoveries in the realm of psychology also have acquired the force
of authority.
Precedent in constitutional law would be more meaningful if the facts
encountered in this field fell normally into easy patterns comparable to
those found in cases dealing with deeds, wills, and contracts. But in consti-
tutional law facts tend to be elusive, and when once isolated, they often
lend themselves to varied interpretations. This attempt to isolate constitu-
tionally significant facts leads judges along many paths. In their required
search for the indefinable line which separates national and state power
and for...