Verification Re: your understanding of precedent

[John C. Eastman]

Michael Stokes Paulsen wrote:

> After having taken into account his or her own interpretive fallibility,
> given due, careful consideration to the views of others, and taken
> measure of the level of his or her own certainty, why should a judge
> who is fully persuaded that a precedent decision constitutes an
> incorrect interpretation of the Constitution (*or* of a federal statute
> or treaty), *ever* deliberately adhere to what he or she is convinced
> is an incorrect exposition of "the law" and decide a case wrongly,
> in accordance with that incorrect exposition?  Is not doing so a
> violation of the judge's oath (under the precise reasoning to this
> effect of Marbury v. Madison (which I cite because it is persuasive
> and well-reasoned, not because it is binding!)?).  Is it not
> *unconstitutional* to prefer an erroneous interpretation of the
> Constitution, made by whatever authority, to the Constitution itself?
>  Is that not to give the act of the faithless agent preference over the
> act of the principal (again, under the reasoning of Marbury)?

Professor Paulsen's description above seems to me to be a very good characterization of the
initial (dare I say "original") view of stare decisis, which, after all, was a doctrine borne of
humility (e.g., the court will not lightly overturn the considered judgment of its predecessors)
rather than a doctrine of constitutional moment.  But query whether precedent is entitled to any
weight when the predecessor court acknowledged that it was moving beyond the text of the
Constitution.
--John C. Eastman
Chapman University School of Law
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