ИГПЗС учебный год 2023 / STARE DECISIS, PRECEDENT, AND THE CONSTITUTION

STARE DECISIS, PRECEDENT, AND THE CONSTITUTION

CHARLES

AIKIN

University of California

QO NCE AGAIN the United States Supreme Court is under attack.

The great tribunal is accused, among other things, of having ignored

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 con-

cerned 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 recog-

nition 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 desir-

able - 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 proportion of 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 consci-

entious 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.

2

Brown 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 Educa-

tion 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 consti-

tutional 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 array of 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 Commis-

sioners, 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 Com-

pany6 it was effectively overturned, a shift that was made without legis-

lative guidance. The growth of the law here merely indicates that occa-

sionally private law may depart successfully from "the fundamental prin-

ciple 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 characterized by growth and development.

The uncertain function of precedent in that corpus we describe as con-

stitutional 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 revolu-

tionary 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

5

10 Meeson and Welshy, 11 L.J.

Ex. 415 (1842).

6217 N.Y. 382, 111 N.E. 1050 (1916).

'E. Jenks,

The Book of English Law (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 con-

victed 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 Con-

gress' power to override a presidential veto, as well as the President's power

to summon the Congress in special session are unambiguous and unques-

tioned. 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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AND THE CONSTITUTION

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

modify substantive common law rules, while acting within constitutional

limitations; and the system requires the courts to accept the legislative

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 con-

servative 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 later10

of the role personal considera-

tions play in litigation bottomed on the Constitution. The powerful argu-

ment for a greater willingness on the part of judges to abandon sterile con-

stitutional doctrines expressed by Justice Brandeis in the Burnet11 case 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 individ-

ualistic 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 reflec-

tion. 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.

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