English law was common law. For those unfamiliar with the term, common law is court-made law. Most American law is common law....it develops through court decisions, each case building on the last by incorporating rules set out in prior decisions. It is in this context that stare decisis developed and becomes necessary to the development of the law. It allows the law to develop and gives it predictability...so people know what the law is
By contrast, continental Europe has more codified law...law that is set out in codes rather than developed through court decisions.
The US Constitution is like a legal code. You don't need stare decisis in most areas of Constitutional law. Where the ruling from a prior court decision conflicts with the written Constitution, the written Constitution must take precedence.
Scalia used to recognize and acknowledge this...now he readily acknowleges that he will follow bad lines of law simply because a prior Court issued it...that I do not understand. Yes, Scalia is willing to follow stare decisis even when doing so violates his own conservative principles (which is right)...apparently also when doing so violates the terms of the Constitution (which is most definitely not right)
Oh, I don't know...Scalia has a point in that you can't just--all of a sudden--upset the constitutional law apple cart and then expect to carry on as if nothing happened. I think at some point you just have to accept an interpretation of the constitution, even if "wrong" as so much a part of society that it's not changable absent a constitutional amendment.
For instance, the Fourteenth Amendment was only intended to apply to a select group of civil (as opposed to political) rights for blacks; do you really want to overturn the last 60 or 70 years of case law? Or is it a good idea for the Supreme Court to wake up tomorrow and then declare that the administrative state is unconstitutional and to disband the FAA, FCC, EPA, etc.? While I might love for these agencies to go away, don't you think, by this point, it is beyond the means of the Court to do anything about them?
I think when talking about judicial activism, I think you have to admit that some things are just a fixed part of our society at this point, and the best way to get rid of such things is by the will of the voters, not the judiciary.