It occurred to me the other day that a lot of Tea Partiers and other sundry and assorted Conservative types tend to treat the US Constitution as if it were in a civil law system rather than a common law system.
In a civil law system, when a judge or court makes a decision, it does not set a precedent that binds future judges or courts. All a court has to look at are the statutes in question and the facts of the case. This is similar to the old "What part of 'shall not be infringed' do you not understand?" rhetoric I've heard many times in discussions of the 2nd Amendment.
Stare decisis, or precedent, is an essential feature of common law systems like ours, which we inherited from the English. You can't just look at the law and the facts in a common law system. You must also look at precedents set by previous courts. As a result, we can't just read the text of the Constitution itself to understand what is and is not constitutional.
Although I think the system we ended up with was brilliant, I personally think the Founders messed up when it came to the judiciary. They have become a rolling constitutional convention because of the role of precedent. I have thought quite a bit about how to solve that problem, but maybe a simple solution would be to strip USSC rulings on the Constitution of precedent.
Of course, I am not a lawyer. I don't even play one on TV. My suggestion would probably wreck the whole system and bring about the Fimbulwinter and eventual Apocalypse. But if you ignore that, it's kind of an interesting idea.
20 comments:
Precedent is good, but in some of these cases, the law is twisted so far from the original that evil is occurring. Legislation by incremental judicial precedent as you note.
-stc Michael
The thing that precedent hopes to stop is for a conflict to keep showing up in the courts, over and over. We work out some kind of solution to that kind of conflict, and then we're done with it. Maybe.
That doesn't really work, but I think that's the idea. What happens if we keep coming to court in every instance of a conflict, and never solve the underlying issue (and never refer to the earlier rulings)? Maybe Congress gets off its butt and works something out, could be. But why should they bother? This is a problem for the courts, not for Congress, and Congress isn't even good at responding to very direct pressure.
Well, the SC can override itself. Stare decisis doesn't go so far as to be immutable. SC rulings are binding only on lower courts.
This may be the best available design, with enough weight to keep the pendulum from swinging too wildly without nailing everything in place forever.
I think Tea Party types, when they say things like "What part of 'shall not be infringed' don't you understand?", are saying something more like "Such-and-such a case was wrongly decided and the court should revisit the issue", not "Everyone should ignore the decision because it's not binding."
There are some fine points here, of course. A decision that requires one to act unjustly is no more or less binding than a statute that requires it. It's the law and the law must be broken to do justice. But that's a statement about the higher duty of justice, not a statement about whether a court decision is binding as law.
It appears that you labor under a profound misunderstanding of the nature of our constitution. It was never intended to establish a civil or common law system of jurisprudence. It was specifically written to serve as a blueprint for the design of our federal government. It was written as a legal document that used specific language with specific meanings. The Founding Fathers broke with the English practice of relying on an unwritten constitution for the stated purpose of empowering citizens to refer to the plain language of a governing document. Consequently, the words of the Constitution and their meanings are of primary importance, past court decisions (especially those that ignore or radically redefine the language) are not. While The Constitution promises to each state a republican form of government it does not promise a common law system. That is why the Constitution is just as effective in Louisiana with its Napoleonic Code system (civil law) as it is in sates that use a common law based system. FWIW, the current problem with the Supreme Court isn't precedent, it's judges that will not be constrained by the limits of their authority and wish to remake the nation in their image acting as a super legislature.
Good points all.
jaed, I know SC rulings don't truly bind future SC decisions, but they do seem to be used a lot to justify decisions.
I'm actually not sure what my proposed change would look like. It could just be a change in judicial philosophy on the part of the justices. For that, only persuasion is necessary. Or, maybe it would be an amendment that instructs the justices to give the greatest weight in decisions to the text of the Constitution, or something like that.
Stare decisis matters to people as holy writ when it supports causes they like but is mere guidelines when it supports causes they don't. As an example, I give you Roe v. Wade and DC v. Heller. Both are precedents decided by the SCOTUS, but depending on which side of the political aisle you stand on, one is never to be touched and the other is a mistake and bad law.
I just would like everyone to stop pretending that they respect "settled law" as immutable... except when the decision goes against their political preferences.
Joel, you posted while I was writing, so I didn't see yours before I hit 'publish.'
Before I reply, I'd like to ask a question. Where did the Founders write that their goal was "empowering citizens to refer to the plain language of a governing document"? If you can give me a specific reference, I'd like to read that and educate myself.
Consequently, the words of the Constitution and their meanings are of primary importance, past court decisions (especially those that ignore or radically redefine the language) are not.
That's not how it has actually worked, however. Look at the Commerce Clause. A lot of federal law that violates the plain meaning of that clause has been allowed to stand because USSC justices rely on precedents that have gradually changed its meaning. That's how a common law system works, and courts under the USSC are bound by precedent. It is a common law system. That's how it worked at the beginning, and the Founders did nothing to change that, so presumably they were fine with it continuing into the new system their Constitution set up.
jaed is right that there is nothing that requires justices to follow precedent, but they do, most of the time, and there is the expectation that they will.
Tom,
At least three of the Founding Fathers answered your question in the Federalist Papers. Federalist 10, 22, 23, and 41 provide a good explanation of the importance of a written constitution. Furthermore, other Founding Fathers specifically addressed the issue as follows:
Thomas Jefferson said, “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. … If it is, then we have no Constitution.”
James Madison said, “Can it be of less consequence that the meaning of a Constitution should be fixed and known, than a meaning of a law should be so?”
George Washington said, “The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. … If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Lets not forget the actual organization of the Constitution which makes it clear, with its enumerated and separated powers (and limitations on power) that it is a blueprint for government.
I would also add that just because we have not always observed the language and requirements of the Constitution does not mean that the Constitution wasn't written to serve as a legal document using specific words with specific meanings. Where we as a people have deviated from the intended use of the constitution the fault lies with us, not the Constitution or the Founding Fathers.
There's tremendous value in making the law predictable, which is where I think the tradition of stare decisis came in. We know, of course, that it doesn't entirely bind the Supreme Court, if a majority of its members can be persuaded that previous rulings had simply gone wrong. Now and then the S. Ct. does something radical, supposedly in service of getting back in line with the original document. Even lower courts, if they are clever and bold enough, can distinguish precedent--sometimes straining language and sense to do so--and do something new, though at the risk of being overturned.
I've had bad experiences with the Mexican and South American court systems, in which each judge seemingly is empowered to do whatever strikes him as fair, or whatever he was most recently paid to do. In practice that means no one has any idea what will happen in a commercial dispute (the only kind I've been involved with), and therefore they minimize their risk-taking and trust, which in turn means it's devilishly difficult to get anyone to invest in a Central or South American operation. I've plotted to snatch many a commercial aircraft once it touched down on a U.S. tarmac, just because there was no reasonable or predictable way to repossess it south of the border: what might work one month could get you shot at the next. The commercial law was remarkably opaque, even if you hired the best-connected local counsel anyone could identify.
It's a good idea to require everyone at least to take a shot at ensuring that new decisions will be consistent with old ones. It's not as though the answer under a document as broad as the Constitution were crystal clear. One reason there are not as many superb judges as we'd like is that it's hard to decide cases according to broad principles that both yield a just result in the instant case and avoid absurd results in future cases, especially as applied by different judges. You can't just codify all this stuff in detail so that an easy answer pops out every time.
In practice, new precedent is being developed all the time as people slowly become aware of ambiguities in old or new statutes, or circumstances change. The courts start trying out solutions, people notice and write them up and argue about them, and lawyers start lobbying judges in new cases to follow one new approach or another. Often a consensus emerges, or two or three different consensuses emerge in different circuits, and eventually a higher court sorts it out. We may not think they chose the right answer out of the competing batch, but we hope it's at least a defensible approach, and at least we know what to expect, more or less, when the issue comes up again.
" But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”"
This is the crux- and the usurpation is usually incremental in nature.
Joel, thank you very much. I've been meaning to delve into the Federalist Papers for some time.
I never challenged the idea that a written constitution was good, nor that it was the blueprint for government. Has anyone said it isn't the plan for our government? I'm curious because I've never heard anyone say it wasn't, and I've hung out in some pretty sketchy places with socialists and anarchists and so on. They had all kinds of criticisms, but I never heard anyone say it wasn't the plan for our government.
Yes, usurpation has been the problem. Jefferson was president when Marbury v. Madison was decided, which was the case that established the USSC's power of judicial review, and which made their precedents so powerful. Jefferson opposed it and I believe tried to get an amendment passed to change it, but it never had the votes.
This brings up another point. I think the US has gone way off track with USSC rulings; we're no where near what the Founders envisioned and tried to produce.
And yet, the people are sovereign, not the Founders. There are ways to amend the Constitution, and there have been a number of amendments since 1803. Maybe the SC having the power of judicial review was not what the Founders intended, but after 200 years and no significant efforts to undo M v. M, can't we say that the sovereign people have accepted it?
I abhor what FDR's SC did to the Commerce Clause, and yet, that was 80 years ago and there has been no serious effort to correct things. There have been other amendments passed in that time, but not one restoring the Commerce Clause. At some point we have to say that the sovereign people have spoken.
Regardless of what should be, I don't believe we can effectively change things without recognizing the way things actually are, the way they actually work. There is a difference between how things should be and how they are, and not recognizing that, pretending that it isn't true, doesn't help fix things.
Tex, thanks for your comment. That's interesting.
Maybe the SC having the power of judicial review was not what the Founders intended, but after 200 years and no significant efforts to undo M v. M, can't we say that the sovereign people have accepted it?
Mrph. There's a distinction between the power to resolve contradictions between the laws and the power to overrule legislation because you think it's bad public policy. I don't think the sovereign people have consented to the 9th Circuit deciding the law that empowers the President to bar any class of immigrant or visitor is no longer in effect because they don't like what Trump said during the campaign. Or to the SC finding emanations and penumbras that prevent states from barring abortion. Or a number of other examples.
Yes, and how many generations have come and gone since those decisions were made? Time, the passing of generations, and the generations passing on correcting these perceived problems, is an essential element of my argument there.
There's tremendous value in making the law predictable, which is where I think the tradition of stare decisis came in.
That is important. I wonder how things work in Europe? Pretty much all of it except the UK and Ireland use civil law systems, which is where Latin America got theirs. Are things as arbitrary in Germany as they are in Mexico?
I wish I knew, but I never had any experience there. It's a good point: a civil law system that fails in an incompetent state like Mexico might do well in Germany.
Tom, You asked me "Where did the Founders write that their goal was "empowering citizens to refer to the plain language of a governing document"? My response was to point you to both quotes and writings were they explained the importance of a written constitution (governing document) to the citizenry. Furthermore, many of those references were intended to demonstrate the importance the Founding Fathers placed on fidelity to the written words of the Constitution, something your original post indicated was inconsistent with our common law tradition. It should be noted that the creation of a written constitution was, itself, a deviation from the common law tradition of England which relied upon an unwritten constitution, the construction of which was left almost entirely to judges. Consequently, your original claim that conservatives and Tea Partiers are confused about the nature of the system in which the Constitution exists is simply wrong.
Additionally, your inference that a common law system requires that stare decisis controls over the plain language of a statute is likewise incorrect and has never been a rule for judicial decision making in this country or even England. In fact, one of the foremost Canons of Construction is the reliance on the plain language of the statute in question. No less a legal philosopher than England's own Sir Edward Coke in 1584 made this clear. While there have been judges that have refused to follow this approach in certain cases, such instances represent a deviation from the traditional reliance on, and preference for the plain language of the statute or constitutional provision.
Joel, thanks for your reply. The connection between your earlier comments and my post wasn't clear to me before, but that clarifies things for me. I'm at work so I'll have to come back to this later.
I didn't get back to this in a timely manner, so I think I will post on the topic again and reframe things to respond.
There are a couple of points I would like to make here, though.
First, I am a Tea Partier. I was part of the core group here locally for about a year, being part of the planning group, attending every function, and flying out for the 9/12 March on Washington. So, when I comment on Tea Partiers, it is as an insider. That's my group; those are my people.
Second, as I pointed out in my original post, this is not an area I am any kind of expert in, so my language was not precise. I will tighten it up in my next post on this topic.
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