Check out this fascinating passage from today's decision in Danforth v. Minnesota about what the Supreme Court does when it changes its interpretation of the Constitution. If I'm reading the passage correctly, it indicates that new Supreme Court decisions that overrule old cases simply discover and recognize the real Constitution that the Court hadn't been able to see in the past. Here's what Justice Stevens says about "new rules" of the Constitution established by new Supreme Court decisions:

[T]he source of a "new rule" is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the "retroactivity" of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.

  So if I understand Justice Stevens correctly, a case like Miranda v. Arizona was constitutionally required at the time of the Framing, but the Court just didn't see the true Constitution until the 5-4 decision by Earl Warren in 1966? Um, like, okay.

  Extra Credit Question: If the Justices truly believe in the passage above, should they be adhering under stare decisis to any criminal procedure decisions that they think are incorrect?