¶ 51. (dissenting). The majority opinion reinterprets Wis. Stat. § 961.45 (1995-96), which this court first interpreted five years ago in a unanimous decision. Majority op. at ¶¶ 15-42; State v. Petty, 201 Wis. 2d 337, 354-62, 548 N.W.2d 817 (1996). In so doing, the majority repudiates our recent Petty decision, but ducks the high bar for overturning precedent on a point of statutory construction. The majority's unwillingness to engage in the appropriate analysis is understandable; its opinion contains little justification to underpin its departure from our controlling precedent. Because the majority opinion oversteps its judicial role in the face of controlling precedent, I respectfully dissent.
HH
¶ 52. The basic problem pervading the majority s troubling opinion is its failure to engage in the analysis necessary to overturn an earlier decision of this court. Rather than answering the certified question under our controlling Petty decision, which directly addressed the meaning of Wis. Stat. § 961.45, the majority launches into a de novo statutory interpretation of § 961.45, thereby ignoring the longstanding rule that this court "is bound by its own precedent." Petty, 201 Wis. 2d 354-62; majority op. at ¶ 15; Rose Manor Realty Co. v. City of Milwaukee, 272 Wis. 339, 346, 75 N.W.2d 274 (1956).
¶ 53. The de novo statutory interpretation in which the majority indulges is only appropriate when we are confronted with a case that presents an unresolved point of statutory construction. In such a case, we will engage in statutory interpretation to discern the legislative intent. State v. Sprosty, 227 Wis. 2d 316, 323, 595 N.W.2d 692 (1999). This is in accord with *356the United States Supreme Court. As Justice Hugo Black observed, the Supreme Court engages in statutory construction "not because the Court has any special ability to fathom the intent of Congress, but rather because interpretation is unavoidable in the decision of the case before it." Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 257 (1970) (Black, J., dissenting). Similarly, we have no special ability to fathom the intent of the Wisconsin legislature, but we must engage in statutory interpretation when a particular case demands it. See Marbury v. Madison, 5 U.S. 137, 177 (1803) ("[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule."). That is our adjudicative role, which is grounded in the Wisconsin Constitution, Article VII, Section 2.
¶ 54. But once this court has spoken on a point of statutory construction, it is bound by that interpretation absent a special justification. Even if a subsequent majority believes that this court's previous construction was wrong, the earlier ruling should be remedied by the legislature in its constitutionally defined legislative capacity.1 This court's subsequent belief that its previous ruling on a point of statutory construction was unreasonable, or perhaps even wrong, is legislative in *357nature, not adjudicative.2 At that point, we no longer have the legitimacy of adj-udicative necessity to rule on that point of statutory construction.
¶ 55. Staying within our adjudicative role does not stifle all development in the law. This court has acknowledged that if the law "is to keep pace with social developments and progress, [it] cannot remain static, and precedents consisting of decisions of this court rendered in the latter half of the nineteenth century sometimes are outmoded and should not be blindly followed." Leach v. Leach, 261 Wis. 350, 359, 52 N.W.2d 896 (1952). The tension between this vitality of the law and adherence to our precedent is resolved through a third principle:
A court's decision to depart from precedent is not to be made casually. It must be explained carefully and fully to insure that the court is not acting in an arbitrary or capricious manner. A court should not depart from precedent without sufficient justification. Justification for departure from precedent could include changes or developments in the law that undermine the rationale behind a decision; the *358need to make a decision correspond to newly ascertained facts; or a showing that the precedent has become detrimental to coherence and consistency in the law. No change in the law is justified by 'a change in the membership of the court or a case with more egregious facts.'
State v. Stevens, 181 Wis. 2d 410, 442, 511 N.W.2d 591 (1994) (Abrahamson, J. concurring) (citations omitted). Accordingly, we must engage in careful analysis when repudiating our precedent on a point of statutory construction in order to remain within our constitutionally defined adjudicative role. In this case, the majority resorts to judicial lawmaking rather than engaging in the appropriate analysis, thereby overstepping the court's adjudicative role.
¶ 56. In reinterpreting Wis. Stat. § 961.45, the majority fails to present a special justification for its departure from our precedent. The majority acknowledges that the State's reading of § 961.45 as tracking Blockburger is reasonable. Blockburger v. United States, 284 U.S. 299 (1932). Majority op. at ¶ 15. Because the State merely advances our Petty reading of § 961.45,1 consider it controlling.
¶ 57. The facts in Petty are strikingly similar to the case at hand. There, a federal court convicted Petty of conspiracy to possess cocaine with intent to distribute and a state court convicted him of possession of a controlled substance (cocaine) with intent to deliver while armed. Petty, 201 Wis. 2d at 343-44. As in the present case, the charges at issue arose from the same course of conduct or criminal transaction — Petty's possession of cocaine with intent to deliver on August 1, 1991. Id. The second issue raised in Petty was the same *359as the issue present here: whether the conviction in state court must be vacated in light of the federal conviction because it violated Wis. Stat. § 161.45 (renumbered § 961.45). Id. at 354. To avoid conviction for the same course of conduct or criminal transaction, Petty argued that the legislature intended Wis. Stat. § 161.45 to provide a broader analysis than the Block-burger test of whether the offenses are identical in law and fact. 201 Wis. 2d at 361 n.13, 362. In response to this argument, we wrote:
[Petty] offers no authority for this proposition, which seemingly contradicts the language of the statute. As the State recognizes, there is no support in the legislative history to substantiate a claim that either the drafters of the Uniform Acts or the successive Wisconsin legislatures intended to deviate from prevailing double jeopardy law concerning what constitutes the same offense for purposes of the statutory bar to prosecution.
Rather, the statutory language tracts the Blockburger test as it expressly requires an identity of law (between the violation of 'this chapter' and the federal law or that of another state) as well as an identity of fact (the 'same act'). Moreover, the fact that a primary purpose of the Controlled Substances and Narcotics Act is to achieve uniformity, while providing an interlocking trellis of drug laws among the state and federal jurisdictions, strongly supports the State's assertion that § 161.45 bars a subsequent state prosecution only when the offenses are substantially the same in fact and law. See generally Prefatory Note, 1970 Handbook of the National Conference of Commissioners on Uniform State Laws, at 223. The defendant has failed to provide any authority to bolster his alternative reading of § 161.45, relying instead on an unsupported *360assertion that the legislature simply intended to broaden double jeopardy analysis in this state without explanation. We do not agree with this novel reading of the statute in question.
Id. The Petty court, then, unambiguously concluded that the words "the same act" in § 961.45 refer to a violation of Chapter 961 and clearly rejected the "novel reading" that the word "act" — in singular form — referred to a course of conduct or a criminal transaction, which forms the basis of a single violation or act. Id. at 361 n.13. These phrases — a course of conduct or criminal transaction — could have been included by the legislature in the five years that have followed Petty if it intended to extend double jeopardy analysis beyond Blockburger.
¶ 58. Rather than acknowledging that the language in § 961.45 barring prosecution for "the same act" refers to a violation of chapter 961, the majority strains to adopt Petty's novel reading of "act" as encompassing the multiple facts, the course of conduct, or the criminal transaction that formed the basis of the act or violation in the present case.3 In an attempt to buttress *361its reinterpretation, the majority conducts a profitless search for legislative intent, reaching back to 1932 when the National Conference of Commissioners on Uniform State Laws adopted the Uniform Narcotic Drug Act, which was the precursor to the Uniform Controlled Substances Act, upon which the Wisconsin Controlled Substances Act is based. Still lacking direct support for its novel reading of § 961.45, the majority cites "national double jeopardy discourse ongoing when the UNDA was created and persisting up to and beyond the passage of the UCSA." Majority op. at ¶ 30. Such discourse does not provide justification to overrule a five-year-old unanimous opinion of this court.
¶ 59. Instead, I find our construction of § 961.45 in Petty, bolstered by the Wisconsin Legislature's inaction since Petty was decided, more compelling than whatever may be gleaned from the vague "discourse ongoing when the UNDA was created" in 1932. The legislature had an opportunity to make any desired policy changes when it adopted § 961.45 in 1997, after Petty was decided. The legislature's refusal to make any changes in § 961.45 evidences acquiescence to our *362previous interpretation of the statute.4 State v. Johnson, 207 Wis. 2d 239, 248, 558 N.W.2d 375 (1997) (concluding that legislature has acquiesced to this court's interpretation of a statute). The legislature not only had the opportunity, but it had examples from other jurisdictions if it intended to broaden Wis. Stat. § 161.45 beyond Blockburger.5 Accordingly, the major*363ity's decision to extend § 961.45 is for the legislature, not this court. By extending § 961.45 beyond the well-settled Blockburger analysis, absent a special justification, the majority has engaged injudicial lawmaking.
Ill
¶ 60. In sum, I would rule that our decision in Petty controls and that the subsequent inaction by the legislature in declining to alter the language of § 961.45 evidences a legislative intent to keep § 961.45 in line with the well-settled Blockburger test. I am disturbed by the majority's willingness to jettison Petty, without engaging in an appropriate analysis and without sufficient justification, while simultaneously conceding that our earlier reading of § 961.45 in Petty is reasonable. Majority op. at ¶ 15. The majority's disregard for our precedent casts a long shadow over our past decisions while providing spongy ground for our future decisions.6 Therefore, rather than repudiating *364our controlling precedent, I would answer this certified question under our recent Petty decision.
¶ 61. I am authorized to state that Justice N. PATRICK CROOKS joins this dissent.
See Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989) (holding that absent a "special justification," the Court declines to overrule a point of statutory interpretation, leaving it to Congress to alter what the Court has done); Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (ruling that "any departure fi;om the doctrine of stare decisis demands special justification."); Wis. Const., art. IV, § 1 ("The legislative power shall be vested in a senate and assembly.").
As the Supreme Court explained in Patterson, a party asking a court to overrule a previous decision on a point of statutory construction bears a greater burden than a party asking a court to overrule a previous decision on a constitutional question. 491 U.S. 164, 172. This higher burden stems from the fact that overruling a previous decision on a point of statutory construction implicates legislative power, whereas overruling a previous decision on a constitutional question is squarely within the province of the judiciary. Id.; see also Marbury v. Madison, 5 U.S. 137, 178 (1803)("[i]f, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.").
As noted above and in Petty, a commonsense reading of Wis. Stat. § 961.45 indicates that "the same act" refers to a single violation rather than multiple facts, a course of conduct, or a criminal transaction, which forms the basis of a violation. State v. Petty, 201 Wis. 2d 337, 361 n.13, 548 N.W.2d 817 (1996). Attempting to avoid this controlling reading of "the same act" and our discussion of § 961.45 in Petty, the majority opinion asserts that our footnote 10 "disavows the discussion in Petty footnote 13." Majority op. at 33. However, the defendant in Petty argued for the majority's reading of § 961.45 in order to have his state charge vacated. We specifically rejected his reading (and the majority's reading) of § 961.45 in footnote 13. Footnote 10, on the other hand, explained that we did not have to engage in *361"the same act" or Blockburger test because we had determined that the federal prosecution had not followed the state prosecution, which is a necessary prerequisite for the § 961.45 bar to prosecution. While footnote 10 stopped short of applying the Blockburger test as established in response to Petty's argument, it does not "disavow" or cast doubt on footnote 13. It may be that the majority disagrees with the Blockburger test, but it is well-settled law in Wisconsin. See State v. Moffett, 2000 WI 130, ¶ 16, 239 Wis. 2d 629, 619 N.W.2d 918 (employing the Blockburger test to determine if the offenses are identical). In light of the unequivocal statutory analysis in footnote 13,1 believe § 961.45 tracks the Blockburger test and should be followed.
The majority seems to suggest that the legislature was not cognizant of our holding in Petty regarding § 961.45 because part of our discussion was in a lengthy footnote rather than in the body of the opinion. Majority op. at ¶ 38. The majority fails to cite — and I am unaware of any authority — that supports the majority's intimation that the legislature refuses to read footnotes in legal opinions. For a discussion of the role of footnotes in judicial opinions and their precedential effect, see Robert A. James, Are Footnotes in Opinions Given Full Precedential Effect?, 2 Green Bag 2d 267 (1999); Thomas R. Haggard, In Defense of the Lowly Footnote, 10-APR S.C. Law. 12 (1999); Judge Edward R. Becker, In Praise of Footnotes, 167 F.R.D. 283 (1996); Herma Hill Kay, In Defense of Footnotes, 32 Ariz. L. Rev. 419 (1990). For a deconstructive discussion of the footnote in general coupled with an analysis of Justice Harlan Fiske Stone's footnote 4 in United States v. Carolene Prods. Co., 304 U.S. 144 (1938), one of the most significant footnotes in the history of constitutional law, see J.M. Balkin, The Footnote, 83 Nw. U. L. Rev. 275 (1989). After reviewing this discussion, in my view, there is no valid or widely accepted basis to disregard footnotes injudicial opinions.
Wisconsin Stat. § 961.45 bars prosecution for "a conviction or acquittal under federal law or the law of another state for the same act." As noted, the legislature could have added course of conduct or criminal transaction after the singular "act" to broaden the double jeopardy analysis beyond Blockburger v. United States, 284 U.S. 299 (1932) in the five years following our Petty decision, but evidently declined to do so. This "criminal transaction" language is the distinguishing feature of a New York statute that goes beyond § 961.45 and the Court of Appeals *363of New York interpreted the "criminal transaction" language after "the same act" to bar prosecution for the same conduct. People v. Abbamonte, 371 N.E.2d 485, 488-89 (N.Y. 1977). Similarly, Pennsylvania has "based on the same conduct" instead of "the same act" in a comparable statute and courts there have interpreted the word "conduct" as barring prosecution by dual sovereigns where there is one criminal transaction. Commonwealth v. Abbott, 466 A.2d 644, 652 (Pa. Super. Ct. 1983). The only other state that has confronted a statute that tracks § 961.45 is New Jersey, which has interpreted the "same act" language as referring to acts prohibited in the preceding statutory sections, in accord with our Petty decision. State v. Ableman, 342 A.2d 228, 230 (N.J. Super. Ct. App. Div. 1975); State v. Krell, 311 A.2d 399 (N.J. Super. Ct. Law Div. 1973).
The concurrence contends that "[i]t is improper to erect the high bar of stare decisis until one has successfully cleared the high bar of showing that Petty note 13 is a judicial precedent *364in the first instance." Concurrence at ¶ 48. However, assuming that footnote 13 in Petty was unnecessary to disposition of the case, we nevertheless have stated that "when a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision." Chase v. American Cartage Co., 176 Wis. 235, 238, 186 N.W. 598 (1922) (cited with approval in State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981)). In Petty, footnote 13 was clearly germane to the controversy as to whether § 961.45 barred the defendant's state prosecution. Moreover, the parties argued whether § 961.45 tracked Blockburger or extended beyond Blockburger to this court. Accordingly, we resolved that very issue properly presented to this court in footnote 13. I would therefore recognize footnote 13 as a binding interpretation of § 961.45.