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Precedent and the Constitution (an old but good read about stare decisis)
Real Clear Politics ^ | November 17, 2005 | Ronald A. Cass

Posted on 01/15/2006 9:14:48 PM PST by Sonny M

Many issues that affect our lives and shape our nation turn on judges' decisions on constitutional questions. Can students say "under God" in the Pledge of Allegiance? Can states take away private property for private uses? Can Congress restrict campaign contributions and expenditures? Answers to these and other constitutional questions depend critically on how one approaches the interpretive task.

Any sensible approach to constitutional interpretation must look to the core sources of law - the text, structure, and history of the constitution. For many questions, these will provide enough guidance to answer the constitutional question presented. Yet in many other cases, these sources will be unclear.

In those cases, judges commonly look to another source of law: precedent.

Prior decisions, because they are the answers other judges have given to related questions, may help judges interpret sources that, standing alone, are less clear. In addition, because the precedents may provide the strongest basis for predicting how courts will resolve a future issue, following precedent serves an independent value: consistency in the law, which allows citizens to function with firmer expectations that they understand the legal consequences of their actions.

Prior decisions, however, do not bind the Supreme Court in a meaningful way. Precedent is a guidepost, not an endpoint. It is the interpretation of constitutional terms by particular justices in a particular context at a particular time. The interpretation may fit well with core sources of law and may provide insights to applying constitutional commands. But it also may have weak enough legal underpinning that it proves to be a fringe that ultimately will be cut out of the law, not a strand that weaves integrally into the law.

Even a frequently cited and long-standing precedent can be overruled. Think of Plessy v. Ferguson, the decision adopting the "separate but equal" doctrine overruled in Brown v. Board of Education. Plessy was the law of the land for nearly 60 years; its basic holding was reaffirmed repeatedly; and it was relied on by citizens and by federal, state, and local governments in ordering their affairs. Yet its demise today is nowhere lamented.

Plessy and Brown illustrate that all precedents are not created equal, and show why precedents are - and should at times be - laid to rest. Plessy may or may not have been consistent with the original understanding of the 14th Amendment's equal protection clause, but it was distinctly at odds with the most obvious meaning of the clause as written and with what we know of the purposes of those who drafted the Amendment.

Decisions that strain the fabric of the constitution, that do not fit the common meaning of the text, are weak at their inception. Support for Plessy eroded as society - and accepted views of racial morality - changed. But its erosion was every bit as much a matter of legal weakness.

Courts struggled to give meaning to Plessy, and found it grated against common understandings of equality. Brown changed the law as it existed in 1954. It was an extraordinarily controversial decision and sparked decades of intense disagreement over its legitimacy and its implementation. But Brown also followed decades of court decisions undermining Plessy, even while reaffirming it.

Proponents of abortion call Roe a "super-precedent," specially immune to reversal. This catchy phrase was coined by some academics trying to garner publicity for their own ideas of judicial philosophy and their new books. But what makes Roe more "super" than Plessy or any of the other precedents overruled by the Supreme Court? Advocates may be intensely supportive of the result in Roe, but that isn't enough.

Each precedent must be evaluated for its consistency with the Constitution's text and structure. Most justices also would add that it must be evaluated for its fit with other precedents, its coherence with related doctrines, its ability to provide clear guidance to lower courts and to ordinary citizens, and the degree to which reversing it would unsettle important areas of law. On all of these scores, Roe is certainly no stronger than Plessy.

During the confirmation hearings for Judge Alito, much of the attention will be on Roe. Alito has demonstrated respect for precedent as a judge for the past 15 years. Liberal Senators will try to extract a pledge that this respect should translate into a commitment not to reconsider important precedents - like Roe.

For these Senators and liberal interest groups, nominees are acceptable only if they share a belief that the Constitution is a fluid document that can be stretched to accommodate constructions at odds with its words and history, but that freezes in place once a precedent they like is handed down.

Claims to respect precedent cannot be taken seriously if the sources of serious constitutional interpretation are thrown aside whenever they yield inconvenient results. Constitutional interpretation is a serious endeavor, not a game. It won't always yield the outcomes any particular observer will want. But it is the anchor of our government and fidelity to it is the essence of the rule of law.

Honorable Ronald A. Cass, President of Cass & Associates, PC, a legal consultancy in Great Falls, VA, is Dean Emeritus of Boston University School of Law and Co-Chairman of the Committee for Justice. He was Vice-Chairman of the US International Trade Commission, and author of “The Rule of Law in America” (Johns Hopkins Press).

TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events; Politics/Elections
KEYWORDS: alito; conservatism; constitution; judges; judicial; judiciary; law; rule; scotus; staredecisis
Outside of the last sentence in the 2nd paragraph, I think this nails it on the head.

So many people have abused and corrupted stare decisis for unconstitutional purposes that the meaning has been changed and its whole point forgotten.

Its a tool, that has been corrupted by the left.

That said, there are many sources from the federalist papers, to various writings, etc in which a judge can use to answer constitutional questions, most especially, the constitution itself being first and foremost (obviously).

1 posted on 01/15/2006 9:14:50 PM PST by Sonny M
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To: Sonny M
In other words, liberals want a justice to uphold a bald face lie. Sad, so sad...
2 posted on 01/15/2006 9:24:43 PM PST by AZRepublican
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To: Sonny M
Outside of the last sentence in the 2nd paragraph, I think this nails it on the head.

There are cases in which reasonable people reading the Constitution and statutes will disagree as to how they apply to the matter at hand. In cases where several different result would all be reasonable, it is perfectly proper to use precedent to select among them.

Where judges go wrong is in regarding precedent as somehow being superior to the Constitution and statutes. There is only one case where it should be, and that only to a limitted extent: if courts have declared to be an action to be legal, such action should bar the government from prosecuting anyone for performing such action unless or until courts find it to in fact be illegal. The previous finding should not prevent future courts from declaring the action to be illegal, but must preclude any prosecution for people who perform it prior to such declaration.

3 posted on 01/15/2006 9:33:11 PM PST by supercat (Sony delenda est.)
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To: NoCmpromiz

ping for 2morrow

4 posted on 01/15/2006 9:53:54 PM PST by NoCmpromiz (John 14:6 is a non-pluralistic comment.)
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To: supercat

Stare decisis only applies to conservative candidates in the media.

Liberals are allowed to overule precedent whenever they want.

Take the death penalty case last year in which the death penalty for minors precedent was overturned.

Having roberts and alito on the court we will be at a disadvantage. Ginsberg, breyer, stevens, kennedy, souter don't care about overturning bad precedent.

Roberts and alito would have been great judges before 1950. But with all the horrible precedents in the last several decades i fear roberts and alito.

Roberts and alito have an extremely rigid view of stare decisis.

Alito responding to schumer said he doesn't agree that even if stare decisis is in conflict with the constitution the law should be overturned.

Alito and Roberts won't make up any new laws like gay marraige but I don't like that alito said he places stare decisis over the constitution.

The media has missed the boat. Alito's personal views mean nothing if he is fixated on stare decisis. Alito will uphold all the unconstitutional precedence then.

Stare decisis that conflicts with the written text of the constitution needs to be overturned.

Affrimative action for example is in conflict with the constitution. It should be struck down.

Anybody that reads the transcript of schumer and alito talking about precedent was very unerving.

You take an oath to the constitution not stare decisis.

5 posted on 01/15/2006 10:25:55 PM PST by johnmecainrino
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To: NoCmpromiz


6 posted on 01/15/2006 10:28:37 PM PST by nopardons
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To: johnmecainrino

I haven't read the transcripts, but I did tape the first two days of the hearings and have viewed a good portion of the Q&A sessions. I came away with the impression from Alito, that he believes the Constitution is first and foremost, followed by statutes. Alito said stare decisis deserves consideration in the context of personal deliberation, but precedent should never be used by itself upon which to draw any final conclusions.

7 posted on 01/16/2006 12:07:32 AM PST by Reagan Man (Secure our borders;punish employers who hire illegals;stop all welfare to illegals)
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To: Reagan Man


8 posted on 01/16/2006 12:28:41 AM PST by EternalVigilance
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To: Sonny M

The USSC's "interpretation" of the Commerce Clause hasn't relied on stare decisis. I like Justice Thomas' opinion in Lopez, from around 1995 I think, that points out that the first 150 years of the court's decisions regarding the Commerce Clause changed completely 50 years ago, around 1935. Judge Alito mentioned this change during the hearings. Another Justice, Breyer I think it was, called Thomas' views "revisionist".

9 posted on 01/16/2006 4:12:00 AM PST by Simo Hayha (An education is incomplete without instruction in the use of arms to protect oneself from harm.)
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To: Simo Hayha
The USSC's "interpretation" of the Commerce Clause hasn't relied on stare decisis.

i was under the impression it had been used as a guiding point (i.e. follow the constitution, and see who previous judges did the same, this is back when judges were intellectualy honest).

Stare Decisis isn't evil or anti-constitutional unless its used that way, a judge in the future may look to Thomas and Scalia for more information on how they handled a similiar decision in a case before them, and use that for assistance, plus also so as to keep the law consistant and predictable (and not accidently over rule something else, without realizing it).

Scalia occasionally will note that congress accidently and/or unintentionally repealed laws unrelated to a new law by language used in certain bills.

I.E. sloppy legislative writing.

10 posted on 01/16/2006 9:04:39 AM PST by Sonny M ("oderint dum metuant")
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