Proposed Constitutional Amendment for Consideration by an Article V Convention of States
“1. Use of Stare Decisis by the Supreme Court of the United States is Not Permitted
- The Constitution must be interpreted to mean only what the words in the Constitution meant at the time written, no more and no less.”
First, what is in the world is stare decisis? As applied in court decisions, stare decisis is the doctrine of precedent. Okay…so what does that mean in practice?
From the Federal Judicial Center, precedent is defined as
“A court decision in an earlier case with facts and legal issues similar to those in a case currently before a court. Courts are required to follow some precedents. For example, a U.S. court of appeals must follow decisions of the U.S. Supreme Court; a district court must follow decisions of the U.S. Supreme Court and of the court of appeals of its own circuit. Courts are also influenced by decisions they are not required to follow, such as the decisions of other circuits. Courts also follow their own precedents unless they set forth reasons for changing the case law.”
Now that we have a clear understanding of stare decisis, let’s look at a first draft of what this proposed amendment would say:
- The only basis upon which the SCOTUS may decide the constitutionality of an existing law are the words in the Constitution, as amended.
- For the existing law(s) under consideration, the SCOTUS cannot reinterpret the meaning of the law’s plain language as anything other than what the common understanding of the language meant at the time of its enactment. The SCOTUS cannot replace a law’s existing words with other words or go beyond a law’s actual language in an attempt discover some unwritten intent.
You might ask, “How did your panties get in such a wad over a concept as arcane as stare decisis? That’s not even on the radar of most people.”
That’s a fair question. The wad started to form years ago when I first learned about the threats posed by activist Supreme Court justices, it began to get really uncomfortable with The Patient Protection and Affordable Care Act, otherwise known as ObamaCare, and it became absolutely unbearable with the passing of Justice Antonin Scalia, one of the all-time greats of the court. I think Justice Scalia would have approved of this proposed amendment.
In its first Obamacare case in 2012 – National Federation of Independent Business (NFIB) v. Sebelius – the SCOTUS got part of its decision right: Congress may regulate commerce but it may not make it mandatory. For most fair-minded observers, that should have killed Obamacare and sent its supporters back to the drawing board. However, Chief Justice John Roberts heroically revived the corpse by declaring that Obamacare wasn’t about mandating commerce; it was about Congress legitimately exercising its power “to lay and collect taxes.”
Chief Justice Roberts, writing for the majority, boiled the reasoning down to this: “The Federal Government does not have the power to order people to buy health insurance … [but] it does have the power to impose a tax on those without health insurance,” even though the text of NFIB vs Sebelius mentions only penalties for those without health insurance, not taxes.
So you see, in effect, Chief Justice Roberts rewrote the Obamacare language, replacing the word “penalty” with “tax.” He was legislating from the bench. To our minds, that’s an impeachable offense.
Had the SCOTUS been bound to part one of the proposed amendment, Chief Justice Robert’s opinion would have run its course before he invaded Congressional terrain. His invasion helped make clear the need to include the explicit language of part two.
In the second Obamacare case in 2015 – King v. Burwell – the SCOTUS went straight into the legislative space it unabashedly and shamelessly carved out for itself in NFIB v. Sebelius.
On Breitbart.com, Ben Shapiro writes:
“In King v. Burwell, four citizens sued over Obamacare, alleging that they had been forced to purchase health insurance; they said that the federal health exchange set up in Virginia in absence of a state-created health exchange under Obamacare did not count as a “state exchange” for purposes of the statute, making it illegal for them to receive federal subsidies for their health insurance. Without the subsidies, they would no longer be required to purchase health insurance, since it would be too expensive.
Now, Obamacare’s language is quite clear: it states that only those who buy insurance via state-run health exchanges may receive federal subsidies. This provision was purposefully designed to incentivize states to set up their own exchanges, in order that politicians could take credit for making health insurance more widely available with the help of the federal government. When states turned down the opportunity to set up such exchanges, the scheme collapsed. Or at least it would have, had not President Obama’s IRS casually rewritten the law, and provided federal health insurance subsidies via the federal health exchanges in violation of both the letter and spirit of the law.[iii]”
Shapiro’s article continues:
“Roberts utilized the following logic, direct from the insane asylum:
[W]e must determine whether a Federal Exchange is “established by the State” for purposes of Section 36B. At the outset, it might seem that a Federal Exchange cannot fulfill this requirement. After all, the Act defines “State” to mean “each of the 50 States and the District of Columbia”—a definition that does not include the Federal Government. 42 U. S. C. §18024(d). But when read in context, “with a view to [its] place in the overall statutory scheme,” the meaning of the phrase “established by the State” is not so clear.”
“Justice Scalia’s dissent, as always, is withering:
The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so…. Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges.”
We must admit … we couldn’t have said it better ourselves.
The SCOTUS’ extreme use of tortured logic in these two cases made clear this glaring omission:
The Constitution doesn’t have a standard that the SCOTUS must use when crafting its decisions.
If the proposed amendment been part of the Constitution at the time these two decisions were made, the SCOTUS would have had no choice but to side with the plaintiffs and the scourge of Obamacare would gratefully be in the rear view mirror. Folks, this one is easy. It isn’t rocket surgery.
Although the above makes a powerful argument in favor of the proposed amendment, here’s a more general rationale that’s even more powerful:
The slippery slope of stare decisis leads to decisions that stray ever further from the Constitution by each succeeding decision that’s based on a previously flawed decision.
A flawed decision that influences later decisions essentially results in de facto amendment of the Constitution. Thus, the SCOTUS must always look past previous decisions to the ultimate standard: the text of the Constitution, as amended.
The last time we checked, the Constitution spells out two ways in which it can be amended, and neither of those ways includes the SCOTUS amending it from the bench.
For those unwilling to accept those last four paragraphs on faith, you’re encouraged to explore a persuasive article in the Constitution Society by Jon Roland, “How stare decisis Subverts the Law.” Here you’ll see in graphic representations how stare decisis inevitably leads to unconstitutional SCOTUS decisions.
As has been the situation prior to enactment of the proposed amendment, the most difficult court cases will remain those involving applicable law’s ambiguous wording, the meanings on which reasonable people can disagree. In such cases, this amendment’s guidance still applies, and the SCOTUS’ final decision will still come down to how each individual justice measures the law’s meaning against the Constitutional standard, NOT how well the law comports with a justice’s personal ideology, feelings, or ability to empathize with aggrieved parties.
We’ll close by conceding on two counts:
- Stare decisis was a reasonable principle for judges to follow in the time of “common law.” However, in a legal system with a written Constitution or other document that stands legally as “the supreme law of the land,” the Supreme Court of that land must abandon stare decisis.
- Federal courts below the Supreme Court must still apply stare decisis with respect only to higher courts. Here’s the federal hierarchy, top-to-bottom:
U.S. Supreme Court > U.S.Courts of Appeals > U.S. District Courts (plus U.S. Court of International Trade and U.S. Court of Federal Claims.