.: I Respectfully Dissent :.

Precedential weight

Speaking of stare decisis, here's the explanation of my concerns that I coughed up for ConfirmThem:

Stare decisis and originalism are not necessarily opposed ideas, but when you have a series of precedents leading in a direction perpendicular to the constitution, originalism must trump precedent.

Visualize it like this: imagine the constitution as a dot. Imagine a series of originalist justices set precedents (we’ll call them, collectively, "circle A")which form a circle around the dot. Each of the originalists cite the preceding precedents, which are all still centered on the dot. Now imagine someone comes in and writes an opinion (we’ll call it "Circle B") which is a circle of the same size, but it’s not centered on the dot - it’s still in the ballpark, its center is still within the circle of precedent. Is that decision okay? Sure. But what happens next? What happens if someone now comes in and writes another decision ("Circle C")producing a precedential circle of the same size - but this time, Circle C’s center point is towards the edge of circle of circle B, and the edge of the circle doesn’t even touch the constitution (our original dot. What happens the next time that a case comes up which a person who believes in stare decisis says is controlled by this line of precedent? Is the judge free to create circle D anywhere they like, as long as it’s within circle C? I would argue that the answer is no, because what has happened is that a series of "in the ballpark" decisions have gotten further and further away from the pitcher’s mound, to the point where the decisions no longer have ay foundation in the text, rather than our circles of precedent. If we lived in a common-law system, that would be fine - but we don’t. Periodically, there HAS to be a course correction to bring us back to the text.

Here’s a slightly clearer explanation using graphics also:

Fig. 1 depicts a line of constitutional authority - let’s say on the commerce clause. The Constitution, naturally is at the center, but because the terms of the constitution are broad, there are a range of permissable interpretations that are still centered on the Constitution. These fall into the area labelled “Circle A precedents.” Fig. 1 also shows a set of precedents called “Circle B precedents” - these are cases which have been decided with one eye on stare decisis. You can see that the precedents within circle B are really centered on precedents within circle A, rather than the Cosntitution itself, but the Constitution is still within the circle of interpretation.

Now let’s say that we have a living documentarian. Fig. 2 depicts a third set of precedents, which have been decided on nothing more than stare decisis, unanchored to the Constitutional text. The decisions may well be rested on precedent, and they may well be the logical next step based on prior precedent - but they no longer resemble the Constitution itself, and they are thus lost and unacceptable.

Fig. 3 illustrates how a conservative judge should rule on a case. It isn’t inescapable that stare decisis carries some weight, and thus it is plausible to decide a case and conclude that precedent carries some weight, but to go in a different direction with it than past precedent has. The outer limits of that discursion, though, MUST still be anchored to the Constitution. This might be what we’d term the Renquist approach; Justice Thomas, of course, would decide the cases in Circle C such that Circle C would be transposed atop Circle A, centered on the Constitution, which I consider to be most appropriate.

See generally, Steven G. Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke; Randy Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds. See also my comments on stare decisis here, and a very, very brief primer on originalism/textualism here.

Posted 13:26, 10/25/2005 by Simon | Filed under: Legal theory | Comment on this

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