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How Precedent Is Often Used to Justify Obvious Wrongs

Video Spotlight · April 18, 2026

Thumbnail for Plain Meaning Video: The End of Written Law: What Precedent Took From You Watch "The End of Written Law" on YouTube →

The use of precedent seems to be something people these days treat as a given. But when you actually dig into the idea that a court case involving a specific situation involving two particular individuals should apply to all others, you start finding issues with it. This may surprise you but precedent wasn't always the norm in America--at least not the rigid precedent that's practiced today. Previous cases were deemed instructive or illustrative of larger principles but never taken as something that was automatically adhered to for other cases. And there was a good reason for this since a case involved a narrow set of facts with a confined number of parties. And the circumstances of your situation or anyone else's naturally involve unique variables that make the question of whether or not a case applies to another obviously debatable.

A Family Affair?

The man who is arguably most responsible for the entrenchment of precedent was the Supreme Court's longest serving Chief Justice, John Marshall. He was a cousin of Thomas Jefferson, the author of the Declaration of Independence and third President of the United States. Jefferson criticized Marshall throughout his life for bringing in English court precedents and legal thinking into American law.

In the Plain Meaning video "The End of Written Law," I cover this aspect of precedent and much more. I actually go back through the origins of precedent in common law to show how the way we view it today is not how it was meant to be applied. And more crucially, how rigid application of a court case to other court cases actually creates not just wrongs but a landscape where unconstitutional actions become common place. Abraham Lincoln saw this clearly and spoke out against it in his first Inaugural address. It's a very fascinating story that puts the reality of today--with warrantless wiretaps and civil asset forfeiture--in historical perspective and shows how we're living in a world both Jefferson and Lincoln saw coming. Click on the link above to watch the video to find out about the history of precedent that even most lawyers don't know about.