Balkinization  

Wednesday, April 18, 2007

The Pernicious Doctrine of Stare Decisis

Michael Stokes Paulsen

posted by Michael Stokes Paulsen

My thanks to Jack Balkin for inviting me to guest-blog for a while. (I had been ribbing Jack about the need for an occasional more-conservative voice, to give Balkinization a modicum of respectability.) Today's Supreme Court decision in Gonzales v. Carhart, the partial-birth abortion case, seemed like as good a time as any to start.

I was, quite literally, teaching *Stenberg* v. Carhart (following on the heels of Monday's class on Roe v. Wade and Tuesday's on Planned Parenthood v. Casey), when a student broke in with the comment that the Court had decided today's partial-birth abortion case, upholding the federal statute. (Ah, the joys of internet access in the classroom.) Seamlessly weaving the student's interjection into the class decision, I asked him about the holding: "Who wrote?" (No one needed to ask the vote or the lineup.) "Kennedy?! Makes sense. Was Stenberg overruled? Could he do that, consistent with his opinion in Casey?"

The answer (as most readers of this Blog probably know by now) is that Stenberg was distinguished, rather than directly overruled -- and not on the most persuasive of reasoning. This, of course, was probably inevitable: Kennedy's vote was crucial to the majority to sustain the federal law; he had dissented vigorously in Stenberg (decided in 2000), on the ground that Casey's purported "balance" should have permitted the partial-birth ban; yet Kennedy was to some extent boxed in by his fifteen-page ode to stare decisis in Casey. You remember Casey: The promise of constancy once given, to all those "tested by following" the Supreme Court's "watershed" decisions -- "whether or not mistaken" -- lest the people's "belief in themselves" be shaken and the nation's "understanding of itselfs as a constitutional Republic" be disturbed by the Court's failure to "remain steadfast" in its efforts to preserve its institutional capital as the body entitled speak before all others on behalf of The People. And all that.

There is thus nothing much surprising, even if there is something more than a little regrettable from the standpoint of principle, about the narrow-almost-(but-not-quite)-to-the-point-of-nothingness opinion today. (An additional virtue, if it is one, is that it gives Chief Justice Roberts and Justice Alito a little more time to work out their views on stare decisis, Casey, and Roe, before being outed by necessity.) The dissenters certainly knew, and said, that today's partial-birth decision is not easily reconcilable with the majority opinion in Stenberg v. Carhart seven years ago. The majority certainly knew it, too.

Stare decisis is a charade. The doctrine, taken seriously, suggests that judges should deliberately decide cases in ways they otherwise are fully persuaded are wrong, on what they otherwise would regard as the proper interpretive criteria -- sometimes. (When that "sometimes" is is itself a disputed aspect of the doctrine.) Taken seriously, the doctrine is unconstitutional: it suggests that a court should prefer the (by hypothesis) faithless earlier departure from the Constitution to the correct understanding of the Constitution, in situations where they conflict. This is directly contrary to the reasoning of Marbury v. Madison -- a sound precedent if ever there were one. (Marbury is right in its argument for judicial review not because it is Marbury, but because it is right.)

But of course the doctrine of stare decisis is not taken seriously, and with good reason. Rarely, if ever, does the Supreme Court, or any individual justice, reach an outcome different from how the Court (or justice) would decide the matter independent of precedent. (Ironically, Planned Parenthood v. Casey may be the one true, significant counterexample.) Usually, stare decisis is just a dishonest or disingenuous cover for a decision reached on other grounds. And, as Gonzales v. Carhart today shows, stare decisis does not truly constrain departures from prior decisions either. (Gonzales v. Carhart is hardly the most compelling illustration of this reality: Casey itself overruled two prior abortion decisions and altered, slightly, the legal framework of Roe -- on the ground that "stare decisis" required it. Lawrence v. Texas overruled Bowers v. Hardwick, with Kennedy there searching desperately, and unsuccessfully, for persuasive reasons why Casey's stare decisis analysis should not bar such overruling.) The notion of stare decisis thus hides the ball, and often drives the true basis of decision underground. The result (when it isn't an outright wrong answer) is proliferation of artificial distinctions, exacerbartion of confusion, creation of a greater and more contradictory body of decisions (from which to permit courts to pick and choose, ostensibly on the basis of stare decisis), and general dishonesty (or at least a lack of candor) in constitutional law.

The question with which I left my class is this: "Does the Court's current doctrine of stare decisis require adherence to the Court's current doctrine of stare decisis, if one were to apply (as if it could be taken seriously) the Court's current doctrine of stare decisis to such a question?"

The answer, of course, is that the doctrine is a cruel hoax, leading (most of the time) to dishonest or strained distinctions (like today's) of prior cases, rather than straightforward discussion of a precedent's correctness or incorrectness. It leads (other times) to dishonest or disingenuous adherence to prior decisions, where the real ground is that the Court either believes the precedent is correct in its interpretation or reaches a desired policy result. (That is, the doctrine is a pure makeweight.) It never requires adherence to a prior case; and it never bars departures. It permits a court to either follow or not follow the holding, and logic of prior decisions. As I have quipped to my students, the doctrine of stare decisis is that courts adhere to their prior precedents except for when they don't.

The true ground for the decision in Gonzales v. Carhart is that Stenberg v. Carhart was crushingly and horribly wrong, as a matter of first principles of constitutional understanding. But whether one agrees with this view or not, that is the issue. Is there anyone -- anyone on the planet -- who thinks that Gonzales v. Carhart and Stenberg v. Carhart were both right? Is not this an observation on which liberals and conservatives can agree?

The study and use of precedent in legal argument, including constitutional argument, is such an ingrained feature of legal training and practice that it has acquired the thoughtlessness of familiarity. But lean on the doctrine of stare decisis just a little bit and it collapses. My position is extreme-sounding, but on reflection should not be thought extreme at all: The doctrine of stare decisis, in the sense of deliberate adherence to precedent decisions one otherwise is fully persuaded are simply wrong, has no legitimate place in U.S. constitutional law. By definition, if taken seriously, the doctrine always directs decisions away from their proper answers (and does so unconstitutionally). And in practice, it adds nothing but mild-to-strong dishonesty and confusion. Witness Gonzales v. Carhart.

MSP


Comments:

What about the fact that the majority of judges are catholic? How does that affect their respect for stare decisis? Given their religious affiliations, is this decisoin a surprise? No.
 

I agree with my friend Mike Paulsen that no sane person could support the two decisions. (As he knows, I come out on the opposite side from him as to the best outcomes.) What is being illustrated, I believe, is in part the reality of decisionmaking on a multimember court. I suspect that eight of the nine justices agree that Kennedy's distinction doesn't make much sense. But they split 4-4 on the best analysis, four presumably for overruling Roe and four for retaining a genuine "undue burden" test. So then the question is why don't we have another Bakke, or, for that matter, Oregon v. Mitchell, where there is a plurality opinion that would simply declare Roe overruled, with Kennedy providing the fifth vote for the result (which would leave Roe on the books)? I suspect that the reason, as Michael suggests, is that Roberts, who has presented himself, altogether falsely, as "Mr. Consensus," doesn't want to tip his hand on Roe until he absolutely has to. And, frankly, it would not serve the interests of the Republican Party to have both of its new appointees state their willingness to overrule Roe. However much that would please Mike (part of the vaunted "base" for Bush), that would alienate a lot of people in the middle who actually like the clumsy compromises crafted by the gone (and rapidly forgotten) Sandra Day O'Connor. I suspect that almost none of the Republican candidates wants to pledge, in effect, to appoint the fifth vote that would effectively kill Roe.

I'm curious how much of this analysis Mike would disagree with. And, by the way, I also agree with a lot of his analytical criticisms of the "doctrine" of precedent, though it's fair to say that not one member of the Supreme Court (save, perhaps, for Thomas and, on some days, Hugo Black) has gone as far as Mike has. Robert Bork, for example, engaged in a grand retreat in his Senate Judiciary hearings with regard to the legitimacy of New Deal cases that he could not possibly have agreed with ab initio.

Welcome to Balkinization, Mike!
 

Beware the intelligent man who has no wisdom.

Stare decisis is a reasoned doctrine that protects us from the whims of current thought and opinion. Disregarding stare decisis is as wise as disregarding history. We must respect and regard long standing decisions of the past, but not blindfully follow them, not heedlessly obey them. We are all human and have our own perceptual strengthes and weaknesses - anyone who thinks he or she is smarter than decades of previous decisions better have a damn good argument.

There is no such argument made in Gonzales v. Carhart.

Unless you of course refer to the principled theory of "we know better" which is a very unfortunate and contemporary mindset.
 

Is it shocking that Kennedy has again written a perfectly incomprehensible and unpersuasive opinion? It's good to be the king. I just can't believe four other justices signed onto that drivel.

That aside, Professor Paulsen's post fails to recognize that there is value in stare decisis from a litigants' perspective. Since judges (or justices) are not permitted to announce their views on legal issues that could come before a court ex ante, we (the litigants) can never be sure whether a particular judge or justice really agrees with certain precedents. Stare decisis therefore has a limiting effect (or should) on the ability of judges to change the rules mid-stream. Don't you think there is a value in that? Now, of course, the judges/justices can try to distinguish precedent, etc. but that doesn't eliminate the fact that stare decisis has some inherent value in constraining judicial decisionmaking.
 

Even conceding that stare decisis might not influence the outcomes of particular decisions (conceding, that is, the claim that in a world without stare decisis, most if not all Supreme Court decisions would come out the same way as they do in our world with stare decisis), I'm not sure the differences between these two worlds can be reduced to differences between the rationales offered to defend their common results - or that we should look solely within the four corners of the opinions for an exhaustive accounting of the differences. What I mean to say is that while stare decisis may not determine the outcomes of particular cases, the convolutions in the rationalizing language it forces on Justices can operate to preserve the broader background principles announced in earlier decisions, which are thereby left alone, alive and well in the interstices between particular holdings, and retaining their force as ambient law. This difference may not amount to much in a world of disciplined judicial minimalism. But even there, the act of declaring a "right" (such as was done in Roe), even with the greatest minimalist care, will influence the actions taken within the 'penumbra' of a case's holding - by which I mean, those similar fact-patterns to which the Court's rationales can be reasonably understood to extend. This inferential space emanating from particular judicial decisions surely affects primary action, and even if stare decisis isn't determining particular holdings in the future, it may still be doing some work by preserving these spaces.

Another possibility is that stare decisis concerns influence which cases (or fact-patterns) the Supreme Court is willing to grant cert on in the first place. So, again, stare decisis may be doing more work than first meets the eye. I suppose it's a separate question whether either of these two pieces of work is normatively defensible.
 

An overly rigid adherence to stare decisis means that the Supreme Court can never correct past errors, no matter how egregious. Do you really want to argue that [here insert the case you consider least legitimate] could not be overturned barring a constitutional amendment?

So how do we know what a past decision is illegimate? I speak frankly here as a layperson and offer as a good general rule that constitutional interpretations should make some sense to an enlightened layperson.

I recall a lawyer trying to explain Roe v. Wade to a friend. "Well, from the Fourth Amendment protection against unreasonable search and seizure comes the right to privacy. And from the right of privacy comes the right to abortion. [Pause]. Well, don't laugh; it's what they said."

Any Supreme Court decision that requires lawyers to tell non-lawyers, "Well don't laugh; it's what they said," should automatically be suspect.
 

"Marbury is right in its argument for judicial review not because it is Marbury, but because it is right."

No comment on that one, Professor Levinson? ;)
 

EL,

I'm surprised your lawyer friend used such non-laymen friendly language.

The far better explanation is "You find the right in the emanations from the penumbras."
 

What about stare decisis as a default? Often difficult cases can legitimately - however you want to define legitimately - be decided in a handful of different ways. Stare decisis says goes with the answer indicated by precedent, even though, for example, the relevant statute is equally capable of being read differently than it was in the prior case. There's no value to that? That's not real?
 

Your friend mistated the law. Griswold is not a 4A case. Brennan in fact raised the point to the solicitor general in the oral argument in Webster. It is about the right of privacy, that is expressed specifically by various amendments, including the 4A. Not the same thing.

A non-lawyer friendly way of saying things is that there are certain rights not expressly listed, though those that are kinda hint at them, but doesn't mean we don't have them.

Like we have rights over the privacy of our marriage, right? Most would agree. Even if you use funny words.
 

The benefits Stare Decisis does provide - stability, backward looking policy, caution, uniformity, etc. - are almost entirely conservative principles, which is a long way of saying that I've got $10 on Paulsen feeling differently with 7 democratic appointees.
 

are almost entirely conservative principles, which is a long way of saying that I've got $10 on Paulsen feeling differently with 7 democratic appointees.

I was going to note the same thing. It seems odd to me for a conservative to attack such a conservative principle, but then, this is really about overturning Roe v. Wade, which stare decisis is a pesky obstacle to -- so just get rid of stare decisis. Problem solved. Seems like a radical baby-bathwater solution to me; I guess I'm more conservative than some.

This fits in with Scalia's brand of "conservatism" as well: he's a strict orginalist, except when he isn't. Like in cases that might lead to a result he doesn't like --the very thing he rails against.

I do commend Prof. Paulsen's honesty, though: "It's right..because it's right." I guess that is another way of saying that it is right because I say so.
 

Reading this post reminds me of the aphorism: Law is merely politics by another name.
 

I think the point has been made above, but to dumb it down to my level:

Stare decisis is not all-or-nothing. It's a very important consideration, but it doesn't trump every other consideration.

That way of thinking about it preserves the benefits of the doctrine (consistency & predictability) while allowing a patently wrong decision like Bowers ("aaah, people have always hated queers, so it must be constitutional to lock 'em up") to be overruled.
 

This discussion of stare decisis reminds me of Gary Wills’ discussion about Papal infallibility in his book “Papal Sin” (and it’s a comparison first brought to my attention in law school by Prof. Levinson’s stimulating “Constitutional Faith” –great book). Wills argues that the Catholic church’s stubborn adherence to their past doctrinal pronouncements (on such matters as women priests, birth control, etc.), many of which stand on shaky theological ground, erodes its intellectual credibility. This leads to many of the problems currently facing the church such as priest shortages and wide-spread defiance of church doctrine (eg., birth control). Surely, an equally stubborn adherence to stare decisis (deaf to sound, logical argument) would lead to a similar erosion of credibility for SCOTUS? That’s not to say it’s without merit, but absolutes on either side of the argument should be suspect.
 

I think earlier comments have gotten it more or less right. It's a default position, a tiebreak, a consideration that can be outweighed. Certainly on such a hot-button issue as abortion, where much of the country both viscerally objects to the practice and believes the ruling was legally illegitimate, it's going to be outweighed.

The problem, as the post pointed out, is that no justice will actually say that. Every dissenter on a groundbreaking case will yell about stare decisis. Ginsburg sounded an awful lot like Scalia in Lawrence, but less honest about the contradiction.
 

To clarify, the post must be talking only about horizontal stare decisis at the Supreme Court level. Surely, for example, it doesn't present the same concerns for one three-judge panel of an appellate court to be bound by a previous panel's decision, absent an en banc overruling or an intervening Supreme Court precedent.
 

Actually, the Gonzales case provides a twofer in support of Professor Paulsen's point.

It is plain that the majority was moving away from Casey and Stenberg. However, I would also note that Justice Ginsberg's dissent was also moving away from Casey's competing interests compromise to a more fundamental right to abortion.

While the majority effectively reduced the O'Connor's intermediate "undue burden" formulation to the standard rational relationship test, Ginsberg was trying to beef up the formulation to a "close scrutiny" standard.

The Roe line of cases was based on an unwritten penumbral privacy right to abortion. However, Ginsberg's dissent attempted to reformulate the right to abortion to "equal citizenship stature" based on cited law review articles.

It is fair to say that stare decisis was not honestly on anyone's mind in this decision.
 

A response to some of the comments on my original post:

1. To say (as I did) that Marbury is right (in its argument for judicial review; it is wrong about much else, I think) *because it is right* and not merely because it is "Marbury" -- i.e., that it is regarded as right because it is a precedent -- is not a "because I say so" argument. It is a claim that the interpretive criteria that make a judicial decision right or wrong do not properly include (in my view) the mere existence of a prior decision simply because it *is* a prior decision.

I recently wrote a very short article as part of a symposium for Constitutional Commentary, entitled "The Intrinsically Corrupting Influence of Precedent." [22 Con Comm. 289 (2006). I'm new to blogging and will someday figure out how to post links!] My argument there is that *whatever* one's theory is of the proper approach to constitutional interpretation, a theory of stare decisis, added on top of it (or mushed in from alongside) *always corrupts the original interpretive theory.* This theory applies across interpretive methodologies. On the one (right) hand, an "original meaning" textualist who qualifies that methodlogy by admitting a stare decisis trump of any meaningful weight has abandoned whatever it is that makes originalist textualism his or her theory in the first place (at least in part). On the other (left) hand, a "broader principles," "evolving Constitution," "pragmatist" theorist that would allow stare decisis to dictate a conclusion contrary to his or her methodology has done the same thing. The full article is short, and fleshes out the argument.

2. Rejecting a theory of *stare decisis* does not mean refusing to read and consider precedent decisions. I heartily agree that we should (in the words of one commenter) "beware the intelligent man with no wisdom"! *Of course* one should read, and consider, the wisdom, insights, analysis, and thinking of others who have gone before. And *of course* one should distrust, out of proper humility, one's instincts to assume, too quickly, that one's own answer is better than that of others, just because it is one's own. Here's the simple point: Where an interpreter, after full and due consideration of a precedent, nonetheless remains fully persuaded, according to other interpretive criteria, that the precedent reached the incorrect legal answer, why should he ever prefer the (by hypothesis) incorrect answer to the (by hypothesis) correct one, *simply and solely* by virtue of it's having once (or multiple times) been decided incorrectly?

In other academic writing, I have distinguished between the "information" function of precedent, and the "disposition" function of precedent. Precedent supplies valuable data; a resource; a baseline for justification -- all as part of its information function. (One insightful commenter is right, therefore, that precedent might have a tie-breaker, or baseline-providing, or justification-requiring, effect, at the margins, within whatever range of uncertainty one has on a particular issue.)

What I resist is the "disposition" function -- that is, the theory that says *whatever* the prior precedent says (that is, irrespective of how one evaluates the prior precedent), it controls. *That* function is, I think, indefensible. (As stated in the original post, I think that this actually happens rarely, so that stare decisis is really more of a ruse than anything else.)

3. Would my view be the same with "7 democratic appointees"? Yes! If Lawrence v. Texas is wrong, it is not because of its failure to adhere to stare decisis and reaffirm Bowers v. Hardwick on the ground that Bowers v. Hardwick had already decided the issue. Rather, if Lawrence is wrong it is because of its incorrect interpretation of the Due Process clause of the Fourteenth Amendment.

So somebody owes somebody $10! There are principled conservatives in the world. :-)

4. Sandy Levinson's question about the "politics" of the Supreme Court, both internal and external, is interesting. Here, I can only speculate (and will, shortly).

You are right, Sandy, that I would have preferred four votes (if they are really there) to say "Roe is wrong in the first place, and that's why we uphold this" joined by Kennedy's tie-myself-in-knots convoluted gibberish. As I am re-reading the opinion this morning, I am wondering how (despite the opinion's carefully contrived verbal circumlocutions) Scalia could possibly have signed on to this thing. Doesn't it concede, even if "arguendo," *way* too much for him to stomach?

But the answer (I suspect, but do not know for sure) is *not,* as Sandy (my favorite conspiracy theorist) suggests, that Scalia, or Thomas, or Roberts, or Alito are concerned about 2008 GOP presidential prospects' prospects. (I doubt that many justices think that way; but see Blackmun's opinion in Casey in 1992). Nor do I believe that Roberts or Alito did not wish to "reveal" their "hidden" desire to overrule Roe so soon. (But I find this more plausible, simply as an account of human behaviors and tendencies.)

Rather, I think that the reason this is not a 4-1-4 Bakke-style train wreck is that all five of the majority thought it important to create a majority opinion *because of its (assumed) binding, authoritative, prospective weight*: A clear, undivided majority, has held that a partial-birth ban that looks like this one is constitutional. "Here's your model, constitutional PBA statute." What this means is that all five hold -- or believe others hold -- a view of the (somewhat) constraining force of precedent on subsequent decisions and other decision makers. In other words, all five either disagree with my view on stare decisis or have made the tactical judgment to capitalize on the fact that *other* folks, at least sometimes, will feel obliged to follow *this* precedent, out of some kind of a belief in stare decisis. I tend to think they are kidding themselves in this regard. The precedent of Gonzales v. Carhart will be treated with exactly as much respect as the precedent of Stenberg v. Carhart, should the voting composition shift again. But it's not wholly irrational for them to think this way. (Even though plurality-concurrence judgments are often treated as having the precedential effect of the narrowest rationale sustaining the judgment, a majority opinion sends a clearer signal on this score.)

In the end, I suspect that *this* -- the desire to create a majority opinion for whatever precedential and authoritative weight that might have -- is what suppressed separate opinions that would have deprived Kennedy's of "authoritative" majority status, not devious partisan political motives.

Michael Stokes Paulsen
 

Someone wrote:

EL,

I'm surprised your lawyer friend used such non-laymen friendly language.

The far better explanation is "You find the right in the emanations from the penumbras."


Let's get past this crapola about the "penumbras" in Griswold. The folks that don't like a liberal interpretation of our rights (gotta wonder why) really like to jump on this word "penumbras", but it was hardly a manufactured term or concept in Griswold but preceded it by quite some time. See, e.g., here (and on the following pages; see particularly U.S. v. Screws).

An actual read of Griswold would have made that clear.

Disdain for the word "penumbras" seems to be just lexicographic (and legal) ignorance and anti-intellectualism.

Glad I could set that straight.

Cheers,
 

My argument there is that *whatever* one's theory is of the proper approach to constitutional interpretation, a theory of stare decisis, added on top of it (or mushed in from alongside) *always corrupts the original interpretive theory.*

No doubt this is true, though I think it has more impact on an originalist than on a living constitutionalist. The problem is, it's beside the point.

What people are criticizing in your approach is its over-reliance on logical system building. Logical analysis, by itself, takes us back to the bad old days of scholastic reasoning; it ignores -- indeed, it derides -- the genius of the English common law trial-and-error system. If I can mangle Hegel, I'd say we need to history in order to teach philosophy by example.

What I resist is the "disposition" function -- that is, the theory that says *whatever* the prior precedent says (that is, irrespective of how one evaluates the prior precedent), it controls. *That* function is, I think, indefensible.

This is a much milder claim than you seem to have made above. If your argument is limited to this, I think everyone agrees. Of course precedent isn't controlling. It is, however, a factor important to consider.
 

Disdain for the word "penumbras" seems to be just lexicographic (and legal) ignorance and anti-intellectualism.

Well, speaking as a layperson, my concern is not that lawyers (like other professions) have their own jargon, but that they use it to reach conclusions unsupported by the plain language of the Constitution. The Constitution is written in remarkably simple, accessible language with very little legalese. Yes, there are exceptions (No Attainder of Treason shall work Corruption of Blood). But by and large we have a Constitution whose text is accessible to enlightened layperson.

It seems most likely that it was intended that way, that the Framers wanted a Constitution the general public could read and understand, not one teeming with hidden meaning accessible only to a handful of initiates. This is not anti-intellectual. It is a desire to raise the political awareness of the general public by making the Constitution accessible, rather than encourage a great gap between the priesthood who are admitted to its mysteries and the ignorant masses who must rely on their pronouncement.
 

Enlightened Layperson:

Well, speaking as a layperson, my concern is not that lawyers (like other professions) have their own jargon, but that they use it to reach conclusions unsupported by the plain language of the Constitution....

If you follow the links, you'll see that "penumbras" is not jargon, but a description of the legal landscape as the authors see it. They describe what they mean, and they explain why they think it should be that way (complete with cites, and other supporting argument). It's not a discussion of how much sunshine is physically blocked. It's a bit the metaphor for the fact that in law, at the edges, the lines are blurry and a bit of a gray area, but this is not by virtue of bring intrinsically grey, but rather from the proximity to the areas of clear black('n'white). The law not only applies in the areas where it obviously and explicitly does so, but of necessity also affects other related areas.

... The Constitution is written in remarkably simple, accessible language with very little legalese.

Well, yes, it's short and "simple". Problem comes in applying it to the millions of real-world situations, each different, particularly if interests from one part of it conflict WRT outcome with those in another (or with prudential or other concerns).

... Yes, there are exceptions (No Attainder of Treason shall work Corruption of Blood)....

That one is fairly straight-forward. I doubt anyone disagrees n what that means.

... But by and large we have a Constitution whose text is accessible to enlightened layperson.

True. Whether that is enough to help then make an obvious and unanimous conclusion as to how it applies in specific instances is not. People don't disagree on constitutional law out of obstinacy or sheer cussedness.

It seems most likely that it was intended that way, that the Framers wanted a Constitution the general public could read and understand, not one teeming with hidden meaning accessible only to a handful of initiates....

I agree that the general principles ought to be reasonably well agreed upon (until someone comes in with an agenda and a specific result they seek). But whether they will still agree when reducing it to practise in specific instances hasn't been borne out at all.

... This is not anti-intellectual....

Scoffing at "penumbras" is (particularly when this is used as a point of derision in Griswold when this irritation is not evident in the manifold other uses of the word).

... It is a desire to raise the political awareness of the general public by making the Constitution accessible, rather than encourage a great gap between the priesthood who are admitted to its mysteries and the ignorant masses who must rely on their pronouncement.

Huh? Just as an example, do yo think that the right to grant divorce decrees would not lie in the "penumbra" of a right to authorise and record marriages? ne kind of imples the other, even if not specified explicitly. How about the right to walk, given we have a right to "assemble"? Could the gummint ban walking because it's not in the First Amendment? There are things that are not stated in the Constitution that really are implicit as necessarily following along at least to maintain some cherence to the overal tenor of the document....

Conservatives scoff at "penumbras", because they didn't like Griswold much, and hate its progeny Roe even more. But I'd betcha they'd find a "penumbra" in a heartbeat if the gummint banned all bullets but left their "arms" alone....

Cheers,
 

I have almost no disagreement with Mike's response to my posting. I suspect that his "rational reconstruction" of what possessed Scalia et al. to sign on to Kennedy's opinion is right--i.e., a belief that at least some "inferior court" judges may feel bound by the precedent even if everyone knows that none of the dissenters will ever acquiesce and will overturn the decision the moment a fifth vote arrives--as against my more "conspiratorial" theory. I do wonder, though, if professional Republican operatives are really delighted that the very survival of Roe is now really in play more than has been the case in some years.

Incidentally, I teach my students that the only thing that makes precedent interesting is the presumed "necessity" to adhere to a decision that one regards as some combination of stupid, significantly suboptimal, evil, or the like (as well as a deviation from one's own favorite decisional approach) simply because it exists. Bentham was altogether correct in identifying precedentialism as little more than authoritarianism, in a quite literal sense, in which one simply shuts down one's own capacity for reasoning and submits oneself, with cap in hand, to the brute existence of the earlier case. If one agrees with a precedent, then in no very interesting sense is one "following" or "adhering to" precedent; one is simply congratulating the earlier judges for getting it right.

If the matter at hand isn't very important, then there's a good reason simply to stick with bad precedents for the ostensible "stability" affect. But once an issue is truly thought to be important, it is passing strange why anyone with a reasonably robust commitment to the possibility of reasoned analysis would sign on to a "strong" theory of precedent.
 

Prof. Levinson:

If the matter at hand isn't very important, then there's a good reason simply to stick with bad precedents for the ostensible "stability" affect. But once an issue is truly thought to be important, it is passing strange why anyone with a reasonably robust commitment to the possibility of reasoned analysis would sign on to a "strong" theory of precedent.

I agree with Prof. Levinson here. While "stability" and "predictability" may be prudential reasons for maintaining the status quo ante, if it's a matter of some importance, and it's wrong, sooner or later someone's gonna have to fix it, and some folks will have to get over the inconvenience of new rules. Why delay and make more people suffer under a wrong doctrine? The only ones that get burned by a reversal are the judges that wrote the original opinion, and the insult to their egos can hardly offset the actual injury to later parties with a particularised and concrete interest in the outcome of their own case.

Cheers,
 

Arne,

Thank you for taking me seriously enough to answer my post. Obviously you are right that there is room for disagreement on constitutional interpretation. But I don't see how any common sense reading of the Constitution can be taken as including a right of abortion.

Well, yes, it's [the Constitution is] short and "simple". Problem comes in applying it to the millions of real-world situations.

The Constitution is not supposed to have the answers to all real-world situations. It is left intentionally short and sparse to allow Congress and the states broad discretion in how they handle the real world.

Just as an example, do yo think that the right to grant divorce decrees would not lie in the "penumbra" of a right to authorise and record marriages? ne kind of imples the other, even if not specified explicitly. How about the right to walk, given we have a right to "assemble"? Could the gummint ban walking because it's not in the First Amendment?

I think conservatives have a point when they say some oppressive law would be so unpopular that no constitutional ban is needed. In the words of federalist pamphleteer James Iredell, "The representatives of the people surely can have no interest in making themselves odious, for the mere pleasure of being hated." If Congress proposed a ban on walking and public outcry did not stop them, I am confident that after the next election we would have a new Congress that would repeal the law.

Various Supreme Courts since the days of John Marshall have been finding all sorts of "eminations" and "penumbras" in the Constitution that call for a, shall be say, creative interpetation. The would range from the Marshall court interpeting "no law impairing obligation of contract" as a protection of corporate charters as licensed monopolies to Guilded Age court concepts of "substantive due process" and "freedom of contract." By what principle can anyone argue that these interpretations are illegitimate but a right of abortion is legitimate?

I would further argue that any liberal has good reason to favor judicial restraint these days, considering the sort of "eminations" and "penumbras" Scalia, Alito and Thomas are apt to cook up.
 

EL, what do you see as the role of the Court if statutes receive as wide a latitude as you suggest?
 

Enlightened Layperson:

Thank you for taking me seriously enough to answer my post.

Why wouldn't I? I do that to all posts where I feel I can contribute to the discussion.

Various Supreme Courts since the days of John Marshall have been finding all sorts of "eminations" and "penumbras" in the Constitution that call for a, shall be say, creative interpetation. The would range from the Marshall court interpeting "no law impairing obligation of contract" as a protection of corporate charters as licensed monopolies to Guilded Age court concepts of "substantive due process" and "freedom of contract." By what principle can anyone argue that these interpretations are illegitimate but a right of abortion is legitimate?

I would further argue that any liberal has good reason to favor judicial restraint these days, considering the sort of "eminations" and "penumbras" Scalia, Alito and Thomas are apt to cook up.


It is true that you may cry foul depending on whether the solar inclination leaves your side in the shade. And I don't dispute that there is disagreement on which direction the sun comes from (hut that one out of the park).

My main point was that the "emanations" and "penumbras" are a necessary part of constitutonal interpretation to keep it from being a hollow shell, shielding nothing, and to make it into something more, a rational whole that didn't result in cribbed and inexplicable construction. My example of the "walking" was one such attempt: I didn't say it was likely that such would happen in practise (it is not), but rather that, legally it wouldn't make sense to assume the literal right to assemble without the incorporation of some panoply (or "penumbra") of associated rights that, while not explicit, in their absense would gut or make a mockery of the one right explicitly given.

Once we agree on that, we can set to work with knives and brass knuckles to determine the countours of such....

Cheers,
 

Mark Field:

EL, what do you see as the role of the Court if statutes receive as wide a latitude as you suggest?

Reigning in George Bush sounds like a full-time job to me. :-)

Seriously, if you're still there (this threat is getting pretty old), there are plenty of statutes and executive policies that go against a more narrow and facially obvious interpetation of the Constitution. Personally, I would like to see them start on any statute or executive policy that involves random drug tests or sobriety checkpoints with no probable cause. That fits well within a common sense reading of the Fourth Amendment. And these things do have fuzzy edges to be defined. (Does the 4th Amendment require a warrant to search a barn? Does a videotape of a drunk driver used only to demonstrate his slurred speech violate his 5th Amendment right. And so forth).

But there are a wide range of subjects, from the structure of the executive branch to conditions of corporate charters to labor protective laws to abortion laws that the Constitution doesn't say a thing about. In that case, yes, I think statutes should receive wide latitude. Unless such statutes infringe on some explicit provision of the Constitution, the role of the Court would be the common law role of interpreting statutes. (If strikers against a subcontractor picket a general construction site, does that violate a statute against secondary boycotts, etc.)

This is a less glamorous role than coming up with creative new readings of the Constitution no one has ever thought of before. But it is more appropriate.

Arne:

It is true that you may cry foul depending on whether the solar inclination leaves your side in the shade. And I don't dispute that there is disagreement on which direction the sun comes from.

So far as I can tell, you are saying that your way of determining which "eminations" and "penumbras" are legitmate is "the ones I like." I would agree there is room to disagree how far they should go (and in what direction). My argument is that I have serious misgivings with any emination or penumbra that requires you to say to John or Jane Q. Public, "Don't laugh; it's what they said."
 

Enlightened Layperson:

So far as I can tell, you are saying that your way of determining which "eminations" and "penumbras" are legitmate is "the ones I like." I would agree there is room to disagree how far they should go (and in what direction). My argument is that I have serious misgivings with any emination or penumbra that requires you to say to John or Jane Q. Public, "Don't laugh; it's what they said."

Which is why it's better to go for a deeper explanation (and education) than simply doing "sound bites". The "sound bites" are adequate for those steeped in the theory and caselaw (and those who will go check the cites), which may make them in fact "jargon" (but probably more accurately, "shorthand"), but can be abused when taken out and put in isolation (witness the "penumbras"). Which may account for some of my verbosity (I have a real problem, for instance, keeping LTEs to the requisite 250 words).

Cheers,
 

But there are a wide range of subjects, from the structure of the executive branch to conditions of corporate charters to labor protective laws to abortion laws that the Constitution doesn't say a thing about. In that case, yes, I think statutes should receive wide latitude. Unless such statutes infringe on some explicit provision of the Constitution, the role of the Court would be the common law role of interpreting statutes. (If strikers against a subcontractor picket a general construction site, does that violate a statute against secondary boycotts, etc.)

Because of the vague language used in many Constitutional provisions, there's bound to be a large grey area regarding the rights to be protected. The problem with giving too much deference to Congress is the risk of majority tyranny. That's an all too real risk given our country's racial history and our actions during war time (e.g., the Sedition Act). Your approach doesn't seem to address that problem.
 

The problem with giving too much deference to Congress is the risk of majority tyranny. That's an all too real risk given our country's racial history and our actions during war time (e.g., the Sedition Act). Your approach doesn't seem to address that problem.

The Alien and Sedition Acts were clear violations of the First Amendment. Mass internment of Japanese Americans violates habeas corpus and due process. Any racially discriminatory actions violate the Fourteenth Amendment. (I will admit that before the Civil War they would have been constitutionally legitimate and that majority tyranny would have flourished unchecked).

Laws against abortion violate -- well, nothing discernable with the naked eye.
 

Arne, I guess we're going to have to agree to disagree here. A drop of seemingly clear water, when viewed under a microscope, turns out to be teeming with microorganisms not visible to the naked eye. I do not believe the same applies to the Constitution.
 

Enlightened Layperson:

The Alien and Sedition Acts were clear violations of the First Amendment. Mass internment of Japanese Americans violates habeas corpus and due process.

Why, I agree. It took the enlightened jurists a bit to figure this out, though. They got it wrong first pass.

Cheers,
 

Enlightened Layperson:

On the subject of stare decisis and "getting it wrong", Plessey died a long and agonising death, the advances of Gideon and its progeny came piece-meal, and many precedents are overturned not by a scintillating moment in which the courts say, "Hey! We were wrong!" but rather through a process if chipping away, and then ultimately simply ignoring the remains of a stinking corpse of a prior decision that was wrong.

And that gets to the heart of the merits of stare decisis.

Cheers,
 

The Alien and Sedition Acts were clear violations of the First Amendment.

I think you'd find it hard to explain why given your commitment to Congressional rule expressed above. Congress passed them; the courts (though not the SCOTUS) approved them. What is it that makes any violation "clear"?

Mass internment of Japanese Americans violates habeas corpus and due process.

Again, though, you need to explain why that's the case given the broad latitude you're willing to give legislative action. I'm not saying you can't do that (I think, in fact, that you can); I am saying that your theory of the Constitution will make it very hard.

Any racially discriminatory actions violate the Fourteenth Amendment.

That kind of dodges the issue. As Prof. Levinson pointed out just recently, it's far from clear that the equal protection clause has any "plain meaning" which supports your contention. Even if it did, it's even less clear that, say, the principle of separate but equal would violate it.

I actually sympathize with your commitment to legislative supremacy. But these issues all fall on a spectrum. That makes it very difficult to identify principled lines of demarcation simply by reference to the text.
 

Mark, Arne, neither of you has yet given any plausible explanation what provision of the Constitution guarantees a right to abortion, or why such a strained interpretation of the Constitution is any more legitimate than many equally strained interpretations in the past that I think we would all agree were not legitimate.
 

Enlightened Layperson:

Mark, Arne, neither of you has yet given any plausible explanation what provision of the Constitution guarantees a right to abortion, or why such a strained interpretation of the Constitution is any more legitimate than many equally strained interpretations in the past that I think we would all agree were not legitimate.

You're right. In part becaue it wasn't what I was talking about. Before I do opine there (and pardom me, but you may have to wait), I think I'd like to take the time and read Prof. Balkin's book. Please, have some patience, it may be a while ("Devil in the White City" is on top of the pile, and it's a half dozen deep).

Cheers,
 

Mark, Arne, neither of you has yet given any plausible explanation what provision of the Constitution guarantees a right to abortion, or why such a strained interpretation of the Constitution is any more legitimate than many equally strained interpretations in the past that I think we would all agree were not legitimate.

I don't believe there is any method of interpretation which yields only legitimate conclusions and eliminates illegitimate ones. That's why I'm not a fan of philosophical system building, as I said above.

Turning to your specific question, I don't have any real problem seeing the right to abortion as a component of the liberty protected by the 14th A. That assumes, of course, that the court justifiably gives substantive meaning to that clause (i.e., on the stare decisis effect of those cases).

I also think there's a valid equal protection argument to be made (which Prof. Balkin has made), as well as a free exercise argument in many cases.
 

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