Text vs. Precedent in Constitutional Law‪.‬

Conservative constitutional law scholarship is divided into two camps. First, there are the originalists and textualists like myself, Randy Barnett, John Harrison, Gary Lawson, Judge Michael McConnell, Michael Stokes Paulsen, Saikrishna Prakash, and, at times, Akhil Amar. This camp believes that the text of the Constitution, as it was originally understood, is controlling in most constitutional cases. Second, there are the followers of Supreme Court precedent, who sometimes argue incorrectly that they are Burkeans. (1) The latter group includes Charles Fried, Thomas Merrill, Ernie Young, and, in some respects, Richard Fallon. These scholars all follow the doctrine over the document and believe in a fairly robust theory of stare decisis in constitutional law. (2) The key case in recent times about which the textualists and the doctrinalists have dashed is Planned Parenthood of Southeastern Pennsylvania v. Casey. (3) The argument in this Essay is that the doctrinalists are wrong in arguing for a strong theory of stare decisis for three reasons. First, there is nothing in the text, history, or original meaning of the Constitution that supports the doctrinalists' strong theory of stare decisis. Second, the actual practice of the U.S. Supreme Court is to not follow precedent, especially in important cases. In other words, precedent itself counsels against following precedent. And, third, a strong theory of stare decisis is a bad idea for policy reasons. Each of these three arguments is taken up in turn below.