Bulletin #43     Stare Decisis              08/31/2005


Do you know what “stare decisis” means? – It’s the principle that courts use to make you believe that precedents must be followed, when in reality, precedents are only followed when courts want to follow them.


Black’s law dictionary defines “stare decisis” in relevant part as, “Policy of courts to stand by precedent and not to disturb settled point.  Doctrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same, regardless of whether the parties and property are the same…”


But the dirty little secret that judges don’t want you to know is, that’s not really true.  Even Black’s law dictionary admits it.  The definition continues to explain,

“Doctrine is one of policy, grounded on theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognized and followed, though later found to be not legally sound, but whether previous holding of court shall be adhered to, modified, or overruled is within court’s discretion under circumstances of case before it.”


The definition goes on to say that while precedent “should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice.  The doctrine is not ordinarily departed from where decision is of long-standing and rights have been acquired under it, unless considerations of public policy demand it…”


What all of that boils down to is this:  a court’s decision must be followed, but not really. 


Lawyers and courts use the principle of stare decisis to their advantage all the time. Lawyers use the principle by finding a case in which a court decided some fact or legal principle in a certain way and by persuading the court that the facts of the case currently before the court require the court to decide the current case in a similar fashion.


Courts use stare decisis to back up their own opinions when they want a case to come out a certain way.  Because courts are composed of human beings who have their own biases, courts often go to great lengths to make the case come out in favor of one party or another.  If a court wants to rule a particular way in a particular case, it will find whatever previously decided case it can find in which an equal or higher court ruled similarly and cite that case as the basis for its decision.  In this process, often, courts overlook many other precedents in which cases were decided in the opposite manner. 


Quite often also, courts do not follow even their own precedents.  One year, a court may decide a legal issue in one way, and in the next year, that same court may decide the same legal issue in a completely different way.  In other words, the court may overrule its own previous decision. The court, in essence, says, “We told you before that the law meant X, but we were wrong, the law really means Y now.”  Sometimes when a court changes its mind, it’s a good thing; sometimes it’s not.  In all cases when a court changes its mind, it illustrates the point that stare decisis is meaningless.  Courts do not have to follow precedents when they don’t want to do so.


This has never been more obvious than it is today with rampant judicial activism.

An activist judge or plurality of judges can ignore precedent, look to “public policy considerations” (a key phrase used often by the judiciary as an excuse to justify an interpretation of the law made up out of whole cloth.), and declare the plain language of the law to means whatever the court wants it to mean.


What can be done about this?  First and foremost, understand exactly what powers have been granted to the judiciary by the U.S. Constitution, by your state’s Constitution, by Congress, and by state legislatures. The U.S. Constitution is clear.  Legislators make law, not judges.  Representatives of the people make the law.  This principle was deemed so important that it is, in fact, the very first principle the framers laid down in the Constitution.  Article I, section 1 specifies, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  Your state’s constitution also specifies that your legislature makes the law.  Find that provision and make good use of it when necessary.


The Constitution also specifies, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior…”  Article I, section 1.


  If there are judges, on a state or on a federal level, who are “making new law” by their so-called “interpretations”, they are not “faithfully executing their offices” and they are not “preserving, protecting and defending the Constitution of the United States” or of their state.  If the judges are not “preserving, protecting, and defending” the constitutions, they are not acting in “good Behavior”.  Therefore, they should not be holding their offices.  The remedy for that is spelled out in the constitutions as well.  It’s called impeachment.  Lobby your legislators to impeach any judge who is not acting in good behavior.


There is something else that can be done.  It is something more people must demand.

Instead of simply accepting the edict from the court that the law means what the court says it means, go directly to the source of the law and demand the law to be clarified as to its meaning.  Go to the legislature and demand the law in question to be amended to clarify its meaning and, in essence, to overrule the court’s decision.


The people must demand action from their representatives to halt the improper behavior of the judiciary.  The people must demand removal of those judges who do not read, follow, and apply the law as it was written; and the people must demand that Congress and the legislatures overrule any and all judicial opinions that make new laws or that improperly warp the clear meaning of existing laws.


The Constitution does not require the existence of any of the federal courts as we know them. The Constitution actually specifies only, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  Article I, section 1.  The Constitution granted the power to Congress to establish federal courts, and Congress can also abolish federal courts if it wants to do so.  State constitutions may also have provisions for legislatures to establish, and to abolish, state courts. If the courts still continue to operate outside Constitutional perimeters, the people must demand that Congress and the legislatures abolish those courts.  A clear message must be sent to all.


Parents nationwide are working diligently in each state to make sure that government officials understand that parents have freedom to instruct their own children under existing law, that existing law only allows limited intrusion by the government, or that the limited intrusion of the government in existing law must be repealed.  Any successes won by parents may be instantly eliminated, however, by the decision of one activist judge at any time. Other government officials will claim use of “stare decisis” to make sure that the judge’s decision establishes a lasting precedent.  Now that you know that precedents are not as binding as you thought, please take action to overturn any and all judicial decisions that do not follow the plain language of the constitutions and statutory law. Please take action to send a message that this kind of behavior among judges will not be tolerated.








Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. – www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net