This chapter refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

The chapter deals with the role of the ICJ in the development of international law from both a doctrinal and a practical perspective. It considers concrete examples of the way in which the Court’s judgments and opinions have had an influence on the development of international law, and it concludes that the Court has in practice had a significant impact on the development of international law, even though that goes beyond its core mandate.

The first challenge in understanding the courts’ role in unwritten amendments is definitional. “Unwritten amendments” could be understood as overlapping with, but not identical to, amendments to an “unwritten constitution.” Or they could be amendments to the written constitution that leave no trace on the text of the written constitution. In this chapter, the author focuses on the latter in the hopes that it will illuminate the role of the courts. The undeniable reality is that at various times, the Constitution, or various provisions of the Constitution, has been understood in different ways. When those understandings might be considered “unwritten amendments,” however, is not immediately obvious. The author therefore begins by considering several possible definitions of that term she hopes will then help move us toward a more robust understanding of the role of the courts in interpreting, constructing, or participating in “amending” the Constitution.

The foundation of most rule-based reasoning is the principle of stare decisis, meaning to stand by things decided. Under this principle, when a court decides a case that falls within a rule established in a precedent decided by a superior court or the deciding court, the court must apply that rule, subject to the limits of the principle. The best justification of stare decisis is that complex societies need a great amount of law to facilitate private planning, shape private conduct, and facilitate the settlement of private disputes. Because American legislatures do not have the capacity or ability to enact more than a limited number of private law rules, private law falls largely to the courts. Without the principle of stare decisis, rules adopted in judicial opinions would not be binding and there would be no common law.

There are several limitations on the principle of stare decisis. The most important is that in most areas of the common law if a rule established by precedent is not even substantially congruent with social morality, social policy, and experience, it may be overruled.

Is arbitral investment case-law on expropriation precedential in a legally relevant sense? Orthodox approaches are marked by agreement on a narrow set of arguments, namely that international law is not a common law and arbitral awards do not have stare decisis power, that jurisprudence is hugely important and tribunals rely on it, and that there must therefore be a sort of de facto system of precedents in operation. In effect, ‘factual importance’ is fashioned into a source of legal authority. However, few arguments are given as to why this transfer from fact to law would occur and they do not provide a foundation for a general legal value for precedents. Yet the weight of arbitral jurisprudence is both too great to ignore and too helpful in discovering what ‘’ means in a pragmatic sense. Precedents are statements about general norms; outside the common law, judge-made law is merely an interpretation of a general norm in a judgment. Not even a constant tradition of decisions can turn such a statement into a norm.