Stare Decisis and the Texas Court of Criminal Appeals: A One-Way Ratchet

To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

Texas Constitution of 1876, Art. 1, Sec. 29.

In other words, this generation may not constitutionally give up the next generation’s freedom.¬†Opinions of the Texas Court of Criminal Appeals that incorrectly interpret the Texas Constitution to constrict Texans’ freedom (and expand government’s power), are void.

This constitutional rule trumps the common-law principle of stare decisis, which requires a court generally to follow its own decisions.

Without violating principles of stare decisis the Court of Criminal Appeals may revisit any decision in a way that constricts government’s power (and expands freedom), but may not do so in a way that expands government’s power (and constricts freedom).

Indeed, a Texas appellate court that doesn’t continually revisit its past decisions in criminal cases, to see if they might have been incorrectly decided in favor of the government, is not doing what the Texas Constitution requires of it.

Comments 1

  1. Michael Stuart wrote:

    Mark it’s a promising lead…
    I’m convinced local action is our only recourse; Mordor is lost, and the best we can hope for is its imminent financial demise.

    At present Texas is little more than a satrapy of Mordor on the Potomac. But perhaps we can use the psychopaths against each other; whisper in the ear of our local Neros and Leo X’s that they’re losing power to Washington, that they could be MORE, and isn’t it terrible THEY’RE not in more power. Get them to fight for the 10th amendment.

    Meanwhile, invigorate Texans to take their own government back. Once the psychopaths are done duking it out, sweep’em out and re-take the state.

    Or better yet–just chuck the damn thing and take the next logical step after the Enlightenment: proper pure anarchy.

    Give up that last human superstition, that granting a monopoly of violence and coercion to the people most capable of lying their way into its control is A Good Idea.

    Most destructive religion ever: Statism.

    262 million dead by democide, 1900-2000.

    Posted 04 Oct 2012 at 9:56 pm

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