http://www.constitution.org/col/0610staredrift.htm
|
[Stare decisis] is a maxim among ... lawyers, that whatever has
been done before may legally be done again: and therefore they
take special care to record all the decisions formerly made
against common justice and the general reason of mankind. |
How stare decisis
Subverts the Law
Jon Roland
2000 June
10
One of the most important doctrines in Western law is
that of stare decisis, a Latin term of art which means "to stand by
decided cases; to uphold precedents; to maintain former adjudications".[1]
In modern jurisprudence, however, it has come to take on a life of its own,
with all precedents being presumed to be well-founded, unbiased legal
decisions, rather than political decisions, and presumed to have both the
authority of the constitutional enactments on which they are based, plus
that of the precedents on which they are based, so that later precedents are
presumed to be more authoritative than earlier ones.
The doctrine also tends to give great weight to the
opinion in the case, even to the point of treating the opinion as though it
was law, even though only the order and findings have the actual force of
law, and only in that case, and an explanation of how the decision was
reached is only dictum, or commentary. This means that a
poorly-worded opinion can define a set of legal positions that exceed the
bounds of the underlying constitutional enactments, and become the basis for
future precedents, as though they were constitutional enactments themselves.
The problem is exacerbated by the failure of judges to clearly delineate the
boundaries between edict and dictum.
The doctrine tends to disfavor legal argument that
precedents were wrongly decided, especially if they are precedents
established at a higher level in the appeals hierarchy, and to demand the
litigants "distinguish" their cases from adverse precedents, arguing that
those precedents do not apply to the present case because of elements that
make it different from the cases on which the precedents were established.
This can be very difficult to do if there are a great many recent cases on
the same issues which cover most of the possibilities.
The situation can be made more difficult by the rules of
most courts which limit the length of briefs the litigants may file. In
working backward through a long line of wrongful precedents, a litigant can
reach the length limit before the argument can make it back to the
foundations where the chain of precedents began to drift away from its
authority in the constitutional enactments.
The situation can be illustrated by the Venn diagram in
Figure 1, in which the first set A represents the set of legal positions
consistent with the Constitution, and the points outside the circle
represent unconstitutional positions. It is noted that the boundary of the
set is fuzzy, representing the ambiguity of interpretation at the boundary.
The central point B' represents a court decision whose opinion defines a set
of legal positions consistent with it, shown by the elliptical set with the
letter B at the top, but a portion of that set extends beyond the bounds of
A. The opinion in the next decision C' also falls within A and defines yet
another region C of consistent positions, but which extends beyond both A
and B. Decision D' falls within C, but not A or B, and further defines a
consistency set that extends beyond A, B, and C. The Decision E' doesn't lie
within any of the regions defined by the previous precedents, but its region
of consistency overlaps D and barely C, the kind of situation that might
result from a legal argument that reaches to get a political decision not
based on precedent. Finally, the last decision F' is based on E defines
consistency set F but lies entirely outside A, B, C, and D.
The problem for jurisprudence, especially constitutional
jurisprudence, is how to get back within A when one's opponent's position is
supported by F and one cannot distinguish precedents taking the argument
back to A within the brief page limits. It may be almost impossible unless
or until one can get the case to the Supreme Court, which can ignore and
reverse its own precedents, but which can take only about 75 cases a year,
and is reluctant to issue sweeping opinions that can cover a large number of
cases that might otherwise deserve to be granted certiorari, but which will
never make it because the litigants are discouraged from making fundamental
arguments that might work with the Supreme Court but which would be
disfavored by lower courts.
Figure 1
It is difficult to estimate how many unconstitutional
legislative provisions are adopted each year by Congress, but a plausible
number is more than 20,000, or about as many as the number of bills
introduced each year. There is simply no way that the federal courts can
handle all the cases that might arise under that many provisions. They are
almost forced to rely on the presumption of constitutionality of statutes,
but members of Congress are increasingly reluctant to restrain themselves
from adopting legislation they know to be unconstitutional, but which is
supported by some of their constituents, and passing the duty to the federal
courts of striking legislation that should never have been passed in the
first place.
The way stare decisis is supposed to be used is
indicated by the definition of it in Bouvier's Law Dictionary of
1856, which is closer to original practice and intent:
Stare decisis.
To abide or adhere to decided cases.
2. It is a general maxim that
when a point has been settled by decision, it forms a precedent which is not
afterwards to be departed from. The doctrine of stare decisis is not always
to be relied upon, for the courts find it necessary to overrule cases which
have been hastily decided, or contrary to principle. Many hundreds of such
overruled cases may be found in the American and English books of reports.
Mr. Greenleaf has made a collection of such cases, to which the reader is
referred. Vide 1 Kent, Com. 477; Livingst. Syst. of Pen.
Law, 104, 5.[2]
This indicates that the way stare decisis is supposed to
be used is to define the boundaries of the constitutional enactments, as
shown in Figure 2, where the decisions B' ... L' lie on the fuzzy boundaries
of the region of legitimacy A and sharpen those boundaries. This is
accomplished by opinions that do not define a set of consistent propositions
that extend beyond A. That is, every judge is careful to anticipate all the
ways the words of his opinion might be misconstrued to support decisions
beyond what is authorized by the constitutional enactments, and in
particular, the Constitution.
Figure 2
There would appear to be only two ways out of our present
predicament: Either the people must start electing different members of
Congress, and demand that they strictly comply with the Constitution, or
else the courts, especially the Supreme Court, need to start issuing
sweeping opinions which overturn past precedents and strike down entire
blocks of legislation.
However, the drift away from constitutional legitimacy
represented by Figure 1 is not just the result of incompetence or confusion.
There is a faction which has tended to dominate the federal government,
especially during most of the 20th century, which has deliberately sought to
extend precedents beyond the bounds of original constitutional
understanding. It has done this by carefully selecting cases against weak or
inadequately represented defendants, appealing only those cases they are
sure they will win, and framing the arguments so that the judges often don't
have a choice that is constitutional, but must choose between two
unconstitutional positions. Ordinarily this is supposed to be guarded
against by constitutionally protective parties filing amicus curiae
briefs to argue a strict constructionist position, but such briefs are not
always filed in important cases, or are often ignored by the court.
The Supreme Court, beginning with the decision in
United States v.
Lopez, 514 U.S. 549 (1995), and continuing in 2000 with several
decisions like
United States v. Morrison, Docket 99-5 and
Jones v. United
States, Docket 99-5739, which roll back the federal criminal
legislation based on the Commerce Clause, is nevertheless still unwilling to
issue sweeping opinions, but prefers to rely on narrowly constructed
opinions that have the effect of introducing confusion and conflict into the
system of precedents, perhaps in the hopes that lower courts will seize on
them to create still more conflicts, which the Supreme Court will then only
have to decide among, without drawing as much controversy to themselves as
they would if they issued sweeping opinions.
By treating court opinions as though they are general
law, and not just law for a particular case, we become accomplices in
delegating legislative powers to judicial officials, which is forbidden by
Art. I Sec. 1 of the U.S. Constitution and similar clauses of state
constitutions, which delegate legislative powers exclusively to the
legislative branch, and allow for no delegation of legislative power to
other branches.
There is a fundamental logical problem with stare
decisis as it is currently practiced, which is that it is a logically
separate system of propositions that is independent of, and potentially
inconsistent with, constitutional enactments.[3]
[4]
One who takes an oath to uphold the written constitution is bound to ignore
precedents in conflict with it, and to rest decisions strictly on
propositions that are logically derived from constitutional enactments,
considering precedents only where they sharpen ambiguities in the language
of the written enactments. To treat precedents as superior to constitutional
enactments is to introduce contradictions into the law, and in any system of
logical propositions, acceptance of a single contradiction accepts all
contradictions, rendering every proposition logically undecidable. Contrary
to the view of some judges, the law must be logical, or it is not law.
There are two variants on the doctrine of stare
decisis. The problem we have discussed here is with the strong form,
which treats precedents as binding. However, there is a weaker form,
which treats precedents as merely persuasive. In this second variant,
a dissenting opinion could be more persuasive than the prevailing opinion,
if the person citing it agreed with it. In this variant, precedent becomes
merely a convenient way to save time and words by citing the reasoning in
another case, saying "My reasoning is similar to that", and nothing more.
Historically, what came to be treated as binding started as persuasive.
Returning to treatment of precedents as merely persuasive would solve the
problem discussed here, but history shows us that judges are prone to drift
back to treating them as binding unless some corrective mechanism is
instituted to prevent it. Finding such a check would then be an essential
component of any lasting reform.
Stare decisis
is the way judges seek the safety of the herd. We need to demand they
exhibit more courage, and return to fundamental principles, resorting to
stare decisis only when the positions lie on the fuzzy boundary of the
region of legitimacy.
Notes:
1.
Henry Campbell Black, A Law Dictionary, 2nd ed., New York: West Pub.,
1910.
2.
John
Bouvier, A Law Dictionary, Revised Sixth Edition, 1856.
3.
Gary
Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub.
Pol'y 23, 24 (1994).
4.
Gary
Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5
Ave Maria L.R. 1 (2007).