Long ago in another life, my first boss told me the quickest way to get fired was to defend an existing procedure with “we’ve always done it this way.” By that standard dozens of Scotus judges over the past hundred years deserved pink slips.
A recent Scotus decision took a stab at the problem with Stare Decisis in our Constitutional republic. A Pennsylvania township law forced a landowner to provide public access to an old graveyard on her property. At issue was the Fifth Amendment, “nor shall private property be taken for public use without just compensation.” An open and shut case, right? Not according to the social justice wing of the Scotus. While the majority found the township’s law to be an unconstitutional taking, Justice Elena Kagan, joined by Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor invoked stare decisis and stuck with unconstitutional precedent.
When judges consider precedent they simply examine previous similar cases. Why not? On the other hand, stare decisis, meaning “let the matter stand” is dangerous to society and liberty when rigidly applied to Constitutional matters if it elevates an error to a place higher than the law of the land.
The four Scotus airheads concluded that precedent from a thirty year old decision, which impossibly burdened and ultimately denied individuals federal relief from state takings was correctly decided and that, in any event, stare decisis principles worked against overruling it. This, of course, is a well-trod path. Lefties are quick to invoke stare decisis if it promotes ever-evolving and mushy social justice.
How did this unwritten principle, stare decisis, evolve into a code superior to our written Constitution? In fits and starts beginning in the 16th century, English jurists attempted to keep track of and catalog Parliamentary law, Crown decrees and judicial findings. The English, not having a written constitution, relied on past decisions, the common law. One legal historian described precedent as “the fiber of which the common law was woven, and English judges did not like to unravel the mantle of judicial authority.”1 In kingdoms without a written constitution the stare decisis principle necessarily casts a wide net.
Stare decisis naturally carried over into England’s colonies. Consistency, of having a clue as to how the King’s and then state and federal would judge similar controversies over similar issues is certainly valuable to keeping a happy society. Lower courts generally follow higher court precedent. Not a bad thing.
Yet something is very wrong when Supreme Court precedent, on the principle of stare decisis, supersedes the Constitution. The Leftist/Media complex know the rickety scaffolds of Scotus decisions and not the Constitution or statutory law, buttress their spurious victories over the Constitution. Their Roe v. Wade decision is so awful that democrat congresses backed up by democrat presidents never pressed for a statute legalizing abortion across our nation. Wickard v. Filburn (1941) constitutionalized the New Deal and green-lighted the Administrative State whose offspring, the Deep State, threatens our republican existence. The list goes on.
On the bright side there is at least one Justice, Clarence Thomas, who recently signaled readiness to put a marginally conservative court to good use. Last month he wrote, the court “should restore” its view of the legal concept (stare decisis) “through adherence to the correct, original meaning of the laws we are charged with applying. Because the Constitution is supreme over other sources of law, it requires us to privilege its text over our own precedents when the two are in conflict. I am aware of no legitimate reason why a court may privilege a demonstrably erroneous interpretation of the Constitution over the Constitution itself.”
If the Framers had wanted a Constitution that evolved by judicial ruling, Thomas says, they could have stuck with the unwritten British constitution that governed American colonists in just that way for 150 years before the Revolution.
In a refreshing reference to Alexander Hamilton’s Federalist No. 78, Thomas wrote, “By applying demonstrably erroneous precedent instead of the relevant law’s text—as the court is particularly prone to do when expanding federal power or crafting new individual rights—the court exercises ‘force’ and ‘will,’ two attributes the people did not give it.” In citing “force and will,” Thomas put the court on notice that he regards the typical, historic outcome of stare decisis as usurpations of Congressional and Executive powers. He clearly exercised restraint, because he did not mention Hamilton’s follow-on observation that there is no liberty, if the power of judging is not separated from the legislative and executive powers. I suspect he is saving that bomb for the appropriate time, say, in blowing up Roe v. Wade to pieces.
In another little-noticed stab to the gut of stare decisis, Thomas said that lower federal court judges should not feel bound to comply with incorrect precedent. Thomas so much as asks lower court judges to enlist with his cause!
Adding that “considerations beyond the correct legal meaning, including reliance, workability, and whether a precedent ‘has become well embedded in national culture’…are inapposite,” he admits what’s been clear to the layman for so long; much of what passes for constitutional precedent is simply one mistake, one erroneous decision piled on another. If the states, society, and industry got used to operating under unconstitutional case law, then they can adjust to life under proper and sound decisions as well.
These are momentous times. Working parallel with President Trump, we may soon have a court willing to flip over the Leftist three card monte table and reestablish the law of the land. Watch Buzzi; pray for Thomas.
1. Hoffer, P. C. (1998). Law and People in Colonial America. Baltimore: The Johns Hopkins University Press. 4-5.