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University of Utah
Western Political Science Association
Stare Decisis, Precedent, and the Constitution Author(s): Charles Aikin
Source: The Western Political Quarterly, Vol. 9, No. 1 (Mar., 1956), pp. 87-92
Published by: University of Utah on behalf of the Western Political Science Association Stable URL: http://www.jstor.org/stable/443254
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STARE DECISIS, PRECEDENT, AND THE CONSTITUTION
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CHARLESAIKIN |
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University of California |
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NCE AGAIN the United States Supreme Court is under attack. |
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The great tribunal is accused, among other things, of having ignored |
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the controlling force of precedent, of having been faithless to the |
established doctrine of stare decisis. Anglo-American judges have often commented on this doctrine, particularly with regard to its application to private law.l However, in some minds there has been and continues to be a confusion of the private law doctrine of stare decisis with the role of precedent in constitutional law. This much is clear: ordinary law is concerned with rules which can be applied with precision to the majority of the legal problems that continually arise; constitutional law, on the other hand, is concerned with doctrines; and rules in private law, unlike doctrines in constitutional law, only occasionally compete with other rules for recognition and acceptance by the courts. In the field of private law we demand a degree of certainty that is not attainable - nor would it be wholly desirable - in the field of constitutional law.
The validity of every municipal ordinance and of every state and national statute which intimately affects individual freedom or personal rights is a subject of legitimate judicial inquiry in the light of current ideas and understandings;and a considerable proportionof such legislation comes up for judicial consideration. Careful students of American government know that in such cases a judicial view of what is just in a constitutional sense cannot be based solely on judicial precedent. The able and conscientious judge must consider other appropriate foundations for action. The telling words of the present Chief Justice written in the school segregation case sets forth this truth in positive language. He refused to "turn the clock back" to old authority. "We must consider public education in the light of its full development and its present place in American life throughout the Nation," he declared. "Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws." 2 Judges who in the past have searched for appropriate foundations for their decisions in constitutional cases have added to judicial precedent some consideration of what is politically appropriate, what history is thought to teach, and what are the supposed economic realities. With the
'See Rex v. Taylor, (1950) 2 K.B. 368 at 371. See also the dissent in Washington v. Dawson, 264 U.S. 219 at 238.
2Brown v. Board of Education, 347 U.S. 483 at 492-493 (1954).
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decision of the United States Supreme Court in Brown v. Board of Education discoveries in the realm of psychology also have acquired the force of authority.
Precedent in constitutional law would be more meaningful if the facts encountered in this field fell normally into easy patterns comparable to those found in cases dealing with deeds, wills, and contracts. But in constitutional law facts tend to be elusive, and when once isolated, they often lend themselves to varied interpretations. This attempt to isolate constitu-
tionally significant facts leads judges along many paths. In their required search for the indefinable line which separates national and state power and for the elusive meanings of liberty, property, and equality the judges rationally may find the facts upon which issues turn in such diverse writings as Hawkers and Walkers in Early America, Deep Delta Country, and The Story of Religion in America.3
The contrast here with private law needs not be labored. Wills are made by the thousands and contracts by the tens of thousands every day. Numberless arrangements are made for the custody of children; damages are assessed in an amazing arrayof negligence cases; and a shocking number of crimes are committed with almost clocklike regularity. An application of the then existing law is bound to cause pain to a considerable proportion of those concerned. Consequently, in an effort to achieve new meaning for the law, any one of these hundreds of thousands of incidents might be made the occasion for a high court review of old precedent. But the proportion of situations where such attempts are made is infinitesimal. If potential parties to such litigation are not themselves aware of the fact, at least their counsel know that, as Brandeis once wrote in reference to private law, "it is more important that the appropriate rule be settled than that it be settled right." 4 Of course, learned counsel in a private law action may have trouble in proving his facts in court in any given case; but the forget- fulness of witnesses, the vagaries of juries, and the confusion in the minds of some judges affect the application, more than the character of the rule.
Nothing is said here to suggest that Anglo-American private law has the fixity and certainty of that of the Medes and Persians. In private law the courts do act to mold and give new meaning to established rules, to adjust them - to a modest degree - to change. A survey of the common law itself testifies to this fact. But the change here tends to be gradual and is not normally associated with the social and political philosophy of the judges. In searching for clear examples of the work of common law judges
3See Nippert v. Richmond, 327 U.S. 416 at 435 (1946); Kotch v. Board of Pilot Commissioners, 330 U.S. 552 at 558 (1947); and Everson v. Board of Education, 330 U.S. 1 at
9 (1947).
'Burnet v. Coronado Oil and Gas Co., 285 U.S. 393 at 406 (1932).
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in their guiding the growth of the law, attention has been called, on more than one occasion, to the classic shift in the law dealing with the liability of contracting parties to third persons. Here the rule that was laid down in Winterbottom v. Wright5 was gradually weakened in a number of decisions until by the opinion of Judge Cardozo in MacPherson v. Buick Motor Company6 it was effectively overturned, a shift that was made without legislative guidance. The growth of the law here merely indicates that occasionally private law may depart successfully from "the fundamental principle of uniformity which characterizes all good law." 7 The black letter books have never been able to hide the fact that out on an identifiable horizon such law is characterizedby growth and development.
The uncertain function of precedent in that corpus we describe as constitutional law becomes easily apparent when one bears in mind that while a large portion of the law of the Constitution is fashioned out of judicial decisions, much of it, by the very nature of a constitution, falls outside such actions. There are two areas of constitutional law that are unaffected by the judicial gloss on the document of 1789. The one deals with a variety of issues between parties that can be presented to a court in the form of an ordinary action at law, but issues which the courts, under the guidance of the United States Supreme Court, have described as political and have refused to hear. This refusal has been based on the view that resolution of such issues must be reserved to the frankly political arms of the govern- ment. That the lines demarking this area have not been logically drawn does not alter the fact that the courts have recognized and respected these lines.
The other area is concerned with a group of constitutional conflicts that touch on the basic structure of government. An understanding of the nature, scope, and meaning of the division of powers or of the separation of powers - to take two formidable examples - can not be formed solely out of those sporadic, though generally learned, discussions of these doctrines found in the United States Supreme Court Reports. The almost revolutionary changes in the powers of the Chief Executive that have occurred during the past three and a half decades, and the ever shifting relationships that exist between the President and the Congress have taken place with slight guidance from the courts. The Supreme Court may well inquire into the authority which a legislative investigating committee may exercise where private rights are directly involved; but one would scarcely contend
510 Meesonand Welshy, 11 L.J.Ex. 415 (1842). 6217 N.Y. 382, 111 N.E. 1050 (1916).
'E. Jenks,The Bookof EnglishLaw (London: J. Murray,1932), p. 32.
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that the judiciary has the power to control this entire development, or that any court can determine - once and for all - the nature of the power of
inquiry.
In the resolution of constitutional conflicts between legislators and executives that fall outside judicial cognizance, practice and precedent will be considered by the contestants. Ordered action is as essential here as it is in regard to the operation of any established social institution. Decisions that have proved to be successful in the past will be considered and weighed. They may guide; they will not compel, for the authority of precedent, certainly as precedent is understood in private law, will not be decisive.
The primary concern of this paper, however, is with the possible place of the private law doctrine of stare decisis in the portion of the law of the Constitution that is recorded in the United States Reports. Consideration will not be given here to those provisions of the Constitution that are precise and clear, ones that admit of but a single meaning. For example, before a person who refuses to confess to the crime of treason can be convicted thereof there must be testimony of two witnesses to the same overt act.8 All will agree that one cannot be interpreted to mean two. So also with representation in the Senate. Again, the clear meaning of the Congress'power to override a presidential veto, as well as the President's power to summon the Congress in special session are unambiguous and unquestioned. As judicial decisions are not based on such provisions, the areas of conflict that are considered in this paper lie elsewhere. The courts are concerned with those provisions of the Constitution that relate to freedom, citizenship, suffrage, privacy, security, property, comity, equality, taxation, the scope of the power of the Congress to regulate business, the power of the military and that of police and prosecutors. These are the provisions from which stem the mass of conflicts that call for judicial interpretation and, as a consequence, that serve as a basis for constitutional change. That judicial precedent plays an important role here has been indicated. If this were not so, much of our elaborate process of judicial hearings would be a sham. But that recognition does not carry with it the idea that stare decisis as understood in private law is an imperative for judges in constitutional cases.
The contrasting function of precedent in private and public law can be seen even though it cannot be spelled out with precision.
(1) In private law a decision of a court of last resort settles the issue before it, subject, however, to legislative modification or only peripheral adjustment to change through further judicial action. In constitutional
'Article III, ? 3.
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law, to a degree unknown in private law, issues of the type referred to immediately above refuse to be laid to rest. To the extent that the work of courts is constituent in character, such action at no time can so resolve an issue that judges at a later time must abide thereby. In other words, the work of courts in such cases can never be viewed as a piecemeal stopping of the process of constitutional development.
(2)Because judicial confidence in the applicability of old rules to new but similar situations is fundamental, the authorities that common law judges rely on most heavily are statutes and law reports, or texts founded on such reports. It is rare in the history of Anglo-American law for a Lord Mansfield to arise and move outside the settled rules to rewrite a large segment of the law, and doubtless it is best that that is so. As indicated earlier, the Supreme Court, in order to find pertinent facts and authorities to guide it in deciding a constitutional issue, may search where reason directs.
(3)The eyes of a court in a private law case are fixed primarily on the parties before it. Only in a severely limited sense can such cases be defined as class actions. In constitutional cases it is inevitable for judges, while speaking of the rights and obligations of the parties before them, to move far beyond such interests in an effort to resolve related but still only partially defined problems. Thus it is generally true that the United States Supreme Court has refused to set its sights at the level of men named
Marbury,Dred Scott, Yick Wo, Kotch, or of the City of Opelika in passing upon the privileges, powers, rights, and obligations of litigants.
(4) In private law the supremacy of the |
legislature leaves it free to |
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modify substantive common law rules, while |
acting within |
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limitations; and the system requires the courts to accept |
the legislative |
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substitute as binding. In constitutional law, on the other hand, despite the fact that both judiciary and legislature look to the Constitution for guidance, the idea of judicial rather than legislative supremacy prevails. While it is true that the legislature is under no moral or legal compulsion to accept a judicial interpretation of the Constitution, the fact remains that a legislature that ignores the Supreme Court's edicts does so at its own risk.
It was suggested at the outset that constitutional law is concerned with a struggle between competing principles rather than with rules; and that the primary concern of private law is with certainty, that is, with the isolation and identification of precise rules. The memory of two decades of the work of the United States Supreme Court prior to 1937 may raise a question in some minds in this regard. Certainly the confidence of conservative lawyers in the immutability of those public law doctrines which they favored that had prevailed during this period was based not on the
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Constitution but rather on the deep imprint that Presidents Wilson and Harding had made on the personnel of the Court. The work of five men, who for a dozen or so years held tenaciously to doctrines that were at once widely discredited and at the same time politically and economically immoral, supplied a weak foundation upon which to construct a doctrine of stare decisis in public law. The plaintive and revealing dissent of Justice Sutherland in the West Coast Hotel case9 tells more than does the angry language of Justice Roberts a few years later10of the role personal considerations play in litigation bottomed on the Constitution. The powerful argu- ment for a greater willingness on the part of judges to abandon sterile constitutional doctrines expressed by Justice Brandeis in the Burnet11case did not lay stress upon this point. This justice was appealing in a practical way to colleagues on and off the bench in language which common law judges may easily comprehend. There was no occasion for him to attempt an exposition of more fundamental constitutional verities.
The justices of the United States Supreme Court in construing the Constitution function as a court. They search for certainty, show a desire to follow set patterns, and traffic in precedent. All but the most individualistic of judges have shown a sense of humility in facing the earlier work of great jurists. But a firm desire to act like common law judges cannot compel them to make something of the Constitution that it is not. In constitutional cases, issues are never finally settled, for the social back- ground against which the ordinances of the Constitution acquire form and meaning is forever changing: As the mirror changes, so must the reflection. Thus it is that in this process of the construction and application of the Constitution, the private law concept of stare decisis has no place.
9West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 0Mahnich v. Southern S.S. Co., 321 U.S. 96 at 112-113 (1944).
Burnet v. Coronado Oil and Gas Co., 285 U.S. 393 (1932).