06 December 2011

Constitutional Postivism and Precedent Part 1

Constitutional positivism seems to be in the air. That the text of the U.S. Constitution--and nothing else--is the sole standard by which a court should engage in constitutional adjudication is the conclusion. Notable by it absence from such a calculus is precedent--what a court, including the U.S. Supreme Court, has previously decided about the meaning or application of the constitutional text.

The argument favoring such a conclusion is variously stated but seems to come down to this: it's a written constitution and the Constitution has priority over all laws of which court decisions are a particular example. The United States has a written constitution and judges have taken an oath to support and defend it. QED.

A couple of thoughts. First, historical. The Constitution doesn't say that judicial interpretive decisions shall not have precedential value. Of course, it doesn't say that decision should serve as precedents, either. There is no reason to take constitutional silence as prohibition or permission. So what should be the default position? Who has the burden of proof? The positivist or the precedentialist?

I can't say that I've heard the positivists address this point but it strikes me that they should bear the burden. Consider what Alexander Hamilton wrote in the Federalist No. 78: "To avoid arbitrary discretion in the courts, it is indispensable that they should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them." Hamilton wasn't addressing constitutional litigation but it strikes me that the Founders, coming as they did from the precedent-oriented system of the common law, would have presumed its place in such litigation. At least I'd like someone to refer me to any contrary historical context.

Moving from history to theory, what virtues might there be in treating previous constitutional decisions as having substantial bearing on what a subsequent court should do? Jeremy Waldron's recent working paper, Stare Decisis and the Rule of Law (abstract here), is a typical example of his thoughtful analysis. Waldron begins by asking whether there is a justification for stare decisis, the use of precedent to constrain subsequent judicial action, in the principle of the rule of law. After all, as he points out, researching and arguing precedent is very costly. Maybe we should simply shoot directly for the efficient or the just result instead.

Waldron connects stare decisis and the rule of law in a "principle that commands judges to work together to articulate, establish, and follow general legal norms." We are familiar with the principle of cooperative law finding when we think of a bench of a multiple-judge court but less when considering courts across time. Whence comes such a principle of temporal or inter-generational collegiality?

Waldron is careful not to ground any virtues of stare decisis in utilitarian concerns like predictability. Predictability is of course very important but functions with respect to precedent only if the principle of stare decisis is already assumed. Instead, Waldron looks first to the principle of the rule of law and only then considers judging from the perspective of a longitudinal social practice.

Drawing significantly from Joseph Raz's perspective on the judicial role, Waldron describes the work of a judge in a rule-of-law polity as beginning with the question, "What does the law require in this situation?" A polity's leading principle could be otherwise, say, autonomy, justice, or efficiency. But when the civil government presupposes the rule of law, a judge, like other government functionaries, must begin with that presupposition as well.

Anticipating scepticism about his "naive" belief in the rule of law, Waldron carefully argues that judges properly reach decisions by looking to the law, contra the now tiresome (at least to me) claims of legal realists and their progeny that factors other than "the law" determine judicial outcomes. When the law does not clearly prescribe a particular outcome, judges in a rule-of-law polity interpret and apply the legal materials that exist. Such an approach to indeterminacy is simply implementing the rule of law and not the rule of autonomy, justice, efficiency, or personal preference.

In any case--whether existing legal materials clearly provide the rule of decision or if a judge must have recourse to cognate materials--he or she must explain why a particular result was reached: "We want to know why the plaintiff wins and we want that 'why' to be an articulated unversalizable norm." Again, this is an example of implementing the rule of law. The publicly stated rationale for a judge's decision serves both to constrain a judge not otherwise committed to the rule of law and to persuade a polity that indeed they are rule by law and not personal preference.

Waldron spends most of the article on his second point, that judicial decision-making represents a longitudinal social practice. If the judge who first faced a particular indeterminate issue created what could count as precedent, i.e., articulated a universalizable norm based on cognate legal materials, what should a subsequent judge do with it? For Waldron it is wrong for the subsequent judge to ignore it or even simply to treat an earlier decision as another bit of cognate evidence of the law. To do either would be to sell "short the general norm" on which the decision purported to be based and implicitly suggest that the first court (and hence the second and any subsequent court) was not subject to the rule of law. It is one thing to conclude that a prior court was wrong; it is far more problematic to suggest that the prior court didn't do what its decision purported to do: articulate a universalizable norm based on legal rules. And that would be the result if subsequent courts did not carry the first decision forward as a norm of the legal system.

Now to repeat the question: What's a subsequent judge to do with the prior decision? According to Waldron, if the first judge did what he or she was supposed to do, then that decision is precedent and stands as the rule of law for the subsequent judge. Why should the subsequent judge submerge his own take on the matter to that of the first judge? Because "he should think of himself not as an individual charged with deciding cases but as a member of a court," in other words, as a participant in a longitudinal social practice rather than a free-lancing law maker. (For my thoughts on the place of tradition and community in law, see my Mission Possible piece which can be downloaded at my SSRN page here). We thus return to the presupposition of the rule of law.

But what about overruling precedent? Does a rule of law analysis leave any place for such a practice? And what about all this in constitutional analysis? More next post.

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