A Call for Judicial Anarchy

mises.org ^ | June 07, 2005 | S.M. Oliva

[getsoutalive]

The discussion about the Supreme Court’s Raich decision has principally centered on the scope of federalism and the Commerce Clause. There is, however, another issue that needs to be examined: stare decisis, the longstanding policy of common law courts to adhere to precedent irrespective of its merits.

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The conflict between stare decisis, a legacy of the uncodified English constitution, and the American constitutional system (which originated with the pre-1787 state constitutions), was discussed by Thomas Paine in his 1792 treatise, Rights of Man:

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Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up. In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for constitution and for law........If the doctrine of precedents is to be followed, the expenses of government need not continue the same. Why pay men extravagantly, who have but little to do? If everything that can happen is already in precedent, legislation is at an end, and precedent, like a dictionary, determines every case.

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The “doctrine of precedents,” as Paine called stare decisis, means that the judiciary is not an agency that protects individual rights through the peaceful resolution of disputes, but rather it is a bureaucracy charged with obeying the arbitrary commands of nine randomly-selected justices. This fealty extends even to those cases where only five of the nine justices have agreed—an odd premise, given that trial juries require unanimity in even the least consequential criminal case. (Furthermore, the proliferation of concurring and dissenting opinions in the modern Supreme Court often provide contradictory views of the same case, rendering “precedent” a mere cosmetic term.)

[getsoutalive]

I am not thrilled with the title of the article, but think the idea is right on the money. If poor decisions cannot be overturned than we are on a one way road to hell.

I also like the point made about the unanimity required in even the most trivial of cases and the lack of such in SC cases that are precedent setting.

[Alberta's Child]

The "doctrine of precedents" is nothing more than a lame excuse to use a prior Supreme Court justice to support one's political agenda. If the "precedent" in question does not support that agenda, then it is routinely ignored or modified as needed.

This is where the utter hypocrisy of the Left is exposed. Democrats have long used their belief that the U.S. Constitution is a "living, growing" document to rationalize blatantly unconstitutional U.S. Supreme Court decisions, but then they insist that all the "living" and "growing" must come to a complete halt once a decision is rendered that fits their agenda.

If the U.S. Constitution were truly "living" and "growing," then Supreme Court decisions should be reversed and changed back again every five years or so just to spice things up.

[Grut]

This is where the utter hypocrisy of the Left is exposed.

In the case of Raich, the hypocrisy's by the Right, whose commitment to a narrow view of the Commerce Clause proved no obstacle to the War on Drugs.

[frithguild]

So what should the role of the legislature be, if a subsequent court can disregard the interpretation of a previous court?

[Alberta's Child]

One thing a legislature can certainly do is to clarify/correct court rulings.

For example -- the first time the U.S. Supreme Court ruled that affirmative action was an acceptable form of "discrimination" under the Civil Rights Ace of 1964, Congress should have passed a law that basically said: "No, it's not." Since Congress passed the original law, they would certainly be in a better position to interpret it than the Supreme Court would.

[Alberta's Child]

I don't know about that -- I saw just as many posts here on FR opposing the Supreme Court's ruling as there were supporters.

[Grut]

I'm taking the Bush administration, which argued for the decision, as 'The Right'.

[tacticalogic]

For example -- the first time the U.S. Supreme Court ruled that affirmative action was an acceptable form of "discrimination" under the Civil Rights Ace of 1964, Congress should have passed a law that basically said: "No, it's not." Since Congress passed the original law, they would certainly be in a better position to interpret it than the Supreme Court would.

All well and good in matters of Congress "interpreting" their own legislation. But Congress didn't write the Constitution, and making them the arbiters of what the limits on their own enumerated powers are is a recipe for disaster.