Glenn is certainly correct that I don't believe in a hard-and-fast rule of stare decisis (nor do I know anyone who does). I'm not sure how much the Second Amendment analogy works; I trotted it out because of Glenn/ My principal question remains how and why we decide to honor certain precedents and reopen others.
I've had time only to skim Larry Solum's blog essay. It's terrific, with lots to think about. Insofar as he relies, to some extent, on the fact that Washington himself made recess appointments that were unopposed by constitutional adepts, then I'm reminded, once again, of Marbury and the Section 13-Article III problem. I.e., why isn't the First Congress dispositive on the fact that the two are in harmony rathter than, as Marshall held, in fatal tension? But this might take us too far afield. sandy
