[Here is a more sophisticated institutional analysis of the stare decisis issue, from a widely used, short book on legal reasoning.]

[In interpreting statutory ambiguities,] the court will search for the legislative intent, and this does make a difference. Its search results in an initial filling-up of the gap. The first opinions may not definitely set the whole interpretation. A more decisive view may be edged toward, but finally there is likely to be an interpretation by the court which gives greater content to the words used. In building up this interpretation, the reference will be to the kind of examples that the words used, as commonly understood, would call to mind. Reasoning by example will then proceed from that point. There is a difference then from case law in that the legislature has compelled the use of one word. The word will not change verbally. It could change in meaning, however, and if frequent appeals as to what the legislature really intended are permitted, it may shift radically from time to time. When this is done, a court in interpreting legislation has really more discretion than it has with case law. For it can escape from prior cases by saying that they have ignored the legislative intent.

There is great danger in this. Legislatures and courts are cooperative law-making bodies. It is important to know where the responsibility lies. If legislation which is disfavored can be interpreted away from time to time, then it is not to be expected, particularly if controversy is high, that the legislature will ever act. It will always be possible to say that new legislation is not needed because the court in the future will make a more appropriate interpretation. If the court is to have freedom to reinterpret legislation, the result will be to relieve the legislature from pressure. The legislation needs judicial consistency. Moreover, the court's own behavior in the face of pressure is likely to be indecisive. In all likelihood it will do enough to prevent legislative revision and not much more. Therefore it seems better to say that once a decisive interpretation of legislative intent has been made, and in that sense a direction has been fixed within the gap of ambiguity, the court should take that direction as given. In this sense a court's interpretation of legislation is not dictum. The words it uses do more than decide the case. They give broad direction to the statute.

The doctrine which is suggested here is a hard one. In many controversial situations, legislative revision cannot be expected. It often appears that the only hope lies with the courts. Yet the democratic process seems to require that controversial changes should be made by the legislative body. This is not only because there is a mechanism for holding legislators responsible. It is also because courts are normally timid. Since they decide only the case before them, it is difficult for them to compel any controversial reform unless they are willing to hold to an unpopular doctrine over a sustained period of time. The difficulties which administrative agencies have in the face of sustained pressure serve as a warning. When courts enter the area of great controversy, they require unusual protection. They must be ready to appeal to the constitution.

Where legislative interpretation is concerned, therefore, it appears that legal reasoning does attempt to fix the meaning of the word. When this is done, subsequent cases must be decided upon the basis that the prior meaning remains. It must not be re-worked. Its meaning is made clear as examples are seen, but the reference is fixed. It is a hard doctrine against which judges frequently rebel. . . .

In addition to the power to hold legislative acts invalid, a written constitution confers another and perhaps as great a power. It is the power to disregard prior cases. "The ultimate touchstone of constitutionality is the Constitution itself, and not what we have said about it," Justice Frankfurter has written. The problem of stare decisis where a constitution is involved is therefore an entirely different matter from that in case law or legislation. This is often overlooked when the court is condemned for its change of mind. A change of mind from time to time is inevitable when there is a written constitution. There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous. Nor can it be the Court, for the Court cannot bind itself in this manner; an appeal can always be made back to the Constitution. Moreover, if it is said that the intent of the framers ought to control, there is no mechanism for any final determination of their intent. Added to the problem of ambiguity and the additional fact that the framers may have intended a growing instrument, there is the influence of constitution worship. This influence gives great freedom to a court. It can always abandon what has been said in order to go back to the written document itself. It is a freedom greater than it would have had if no such document existed. The difference in the British practice is revealing. But this may say no more than that a written constitution, which is frequently thought to give rigidity to a system, much provide flexibility if judicial supremacy is to be permitted.

It may be suggested that the doctrine should be otherwise; that as with legislation so with a constitution, the interpretation ought to remain fixed in order to permit the people through legislative machinery, such as the constitutional convention or the amending process, to make a change. But the answer lies not only in the difficulties of obtaining an amendment, nor the difficult position of a court which obdurately refuses to interpret common words in a way ordinary citizens believe to be proper. The more complete answer is that a written constitution must be enormously ambiguous in its general provisions. If there has been an incorrect interpretation of the words, an amendment would come close to repeating the same words. What is desired is a different emphasis, not different language. This is tantamount to saying that what is required is a different interpretation rather than an amendment.