The proposition that courts can misinterpret the constitution seems trivially obvious. Yet it conceals a philosophical puzzle that has occupied constitutional theorists since Marbury: if the Supreme Court is the final arbiter of constitutional meaning, in what sense can its decisions be wrong? The question is not merely academic. It shapes how we understand judicial authority, the legitimacy of resistance to court decisions, and the very nature of constitutional government.

The conflation of the constitution with judicial pronouncements about it—what Larry Alexander and Frederick Schauer have called the “judicial supremacy” view—dissolves the possibility of error into definitional stipulation. If the Constitution just is what the Court says it is, then Dred Scott, Plessy, and Korematsu were, at the moments of their announcement, correct constitutional interpretations. This position has the virtue of clarity and the vice of implausibility.

This essay defends a more discriminating account. Constitutional meaning exists independently of any interpretive authority's pronouncements, though our epistemic access to that meaning is imperfect and contested. From this foundation flow difficult questions: When should erroneous precedents be overruled? What legitimate responses are available to citizens and coordinate branches when they perceive judicial error? The answers implicate the deepest questions of constitutional design—the balance between stability and correctness, finality and fidelity, institutional deference and democratic self-governance.

The distinction between the constitution and judicial interpretations of it is fundamental to constitutional theory, yet it is routinely elided in both popular and academic discourse. When commentators speak of “what the Constitution requires,” they typically mean what the Supreme Court has held it requires. This semantic slippage carries significant theoretical weight.

Consider the analytical structure. A constitutional text possesses meaning—whether determined by original public meaning, purposive interpretation, or moral reading—that exists prior to and independent of any authoritative interpreter's pronouncement. Judges are epistemically situated interpreters attempting to discern this meaning, but their pronouncements are not constitutive of it. The alternative view—that judicial declaration creates rather than discovers constitutional meaning—collapses into an unattractive legal realism in which constitutional law reduces to prediction of judicial behavior.

The historical record vindicates the distinction. Few today would defend Dred Scott v. Sandford as a correct reading of the Constitution, even as originally understood. The decision was overruled not merely by the Reconstruction Amendments but by the moral and interpretive judgment that it misread the constitutional order it purported to construe. Similarly, Plessy v. Ferguson was wrong when decided, not merely because Brown later said so, but because it misunderstood the Fourteenth Amendment's demands.

This does not commit us to interpretive monism. Reasonable interpreters, employing legitimate methodologies in good faith, may reach different conclusions about contested constitutional questions. The claim is more modest: some judicial interpretations lie outside the range of defensible readings, and the constitutional order itself provides the standard against which such errors are measured.

The stakes of this ontological question are practical. If courts can err, then judicial supremacy is not equivalent to constitutional supremacy, and the legitimacy of coordinate branch resistance—and citizen resistance—becomes a live question rather than a category mistake.

Takeaway

The Constitution is not identical to what judges say about it. Preserving this distinction is what makes constitutional criticism possible, and what makes judicial fidelity meaningful.

Once we accept that courts can err, the question becomes when erroneous precedents should be overruled. The doctrine of stare decisis represents a considered judgment that stability sometimes trumps correction, that the values of predictability, reliance, and institutional legitimacy can outweigh interpretive accuracy in particular cases.

The Supreme Court's own articulation, most fully developed in Planned Parenthood v. Casey and refined in Janus v. AFSCME and Dobbs v. Jackson, identifies several factors: the quality of the precedent's reasoning, its workability, its consistency with related decisions, developments in law and fact since the decision, and reliance interests. These factors do not mechanically resolve cases; they structure judgment about when correction is warranted.

The theoretical difficulty is that stare decisis presupposes what it also constrains. To ask whether a precedent should be overruled because it is wrong requires first determining that it is wrong—an inquiry that, if pursued too vigorously, undermines the doctrine's stabilizing function. Yet if precedent is entrenched too firmly, error becomes self-perpetuating and constitutional meaning drifts from its foundations.

A discriminating account distinguishes types of precedent. Decisions creating rules of the road—jurisdictional rules, procedural doctrines, structural allocations—generate substantial reliance and their correction produces significant disruption. Decisions announcing fundamental rights or their absence involve different considerations: reliance interests may be substantial, but the ongoing constitutional harm of erroneous restriction or expansion of liberty weighs against permanent entrenchment.

The deepest question is whether stare decisis has different weight in constitutional as opposed to statutory cases. The traditional view, endorsed by justices across ideological lines, is that constitutional stare decisis is weaker because legislative correction is unavailable. This asymmetry acknowledges that judicial error in constitutional interpretation carries unique costs that legislative supremacy cannot mitigate.

Takeaway

Precedent is not sacred but neither is it disposable. The question is always whether the costs of perpetuating error exceed the costs of destabilizing settled expectations—a judgment that resists formula.

When citizens and officials perceive judicial error, the constitutional order provides a repertoire of legitimate responses. Understanding this repertoire—and its limits—is essential to any account of constitutional government that takes both judicial authority and constitutional supremacy seriously.

Formal amendment under Article V represents the most orthodox response, exemplified by the Eleventh Amendment's reversal of Chisholm v. Georgia and the Sixteenth Amendment's response to Pollock. Amendment preserves judicial authority while correcting substantive results. Its practical rarity, however, means that reliance on amendment alone effectively entrenches judicial pronouncements. The supermajoritarian requirements make Article V a poor mechanism for correcting anything but the most consensus errors.

Jurisdiction stripping under Article III represents a more contested response, invoking Congress's power over federal court jurisdiction to remove certain questions from judicial cognizance. The theoretical foundations are secure—the Exceptions Clause is textually explicit—but the practice risks undermining the rule of law if deployed to insulate constitutional violations from judicial review. The line between checking judicial error and evading constitutional constraint is contested and consequential.

Departmentalism—the view that each branch interprets the constitution for itself in the execution of its functions—represents a middle path. Lincoln's response to Dred Scott exemplifies this: he accepted the judgment as binding on the parties while denying its status as settled constitutional law for the political branches. Departmentalism preserves interbranch dialogue about constitutional meaning without collapsing into either judicial supremacy or executive lawlessness.

Civil disobedience presents the most difficult case. When formal mechanisms are unavailable or inadequate, the question of extra-legal resistance to perceived constitutional error implicates the very foundations of legal obligation. The Rawlsian tradition provides resources here: civil disobedience directed at securing constitutional essentials, undertaken openly and accepting legal consequences, can function as a form of constitutional appeal rather than lawlessness.

Takeaway

Constitutional government provides multiple channels for contesting judicial error. The health of the system depends on maintaining these channels—not collapsing them into either judicial supremacy or unstructured resistance.

The possibility of judicial error is not a threat to constitutional government but a condition of its meaningfulness. A constitution that could not be misinterpreted would be no constitution at all—merely a delegation of definitional authority to whoever holds the interpretive office.

The theoretical framework developed here—distinguishing constitution from court, calibrating stare decisis to the character of precedent, and identifying legitimate responses to error—provides resources for constitutional criticism without dissolving into constitutional nihilism. It preserves the space between judicial supremacy and juristocracy on one side, and populist repudiation of judicial authority on the other.

The deeper implication concerns constitutional design itself. A well-designed constitutional order builds in mechanisms for correcting judicial error while preserving the stability that judicial review provides. The American constitutional tradition, at its best, has maintained this balance through a combination of formal amendment, coordinate branch interpretation, and citizen engagement with constitutional meaning—an ongoing conversation rather than a final pronouncement.