07 December 2011

Constitutional Postivism and Precedent Part 2

On Tuesday I posted Part 1 of this two-parter. I tried briefly to recapitulate Jeremy Waldron's argument that subsequent courts must take precedent (an earlier decision coming to a law-based conclusion on a legally indeterminate issue) as law in a polity committed to the rule of law. If true, is there any place for a subsequent court to overrule a prior decision?

Law in a rule-of-law polity is not of the immutable "law-of-the-Medes-and-Persians" variety. Legislatively enacted laws are often changed. Too often and for poor reasons if you ask me but no one suggests that a subsequent General Assembly of Virginia cannot change a law enacted by a previous incarnation. So too with judicially crafted law. Per Waldron three or so reasons justify overturning precedent: the rule laid down by the earlier court may have been misconceived because it did not accurately reflect the cognate legal materials from which the earlier judge articulated a universalizable norm. Or the cognate materials may themselves have changed. Or, third, it may be clear to all that the original decision has lead to bad results.

Does this suggest that a subsequent court need not truly trouble itself with the rule of law? Isn't it the case that any self-willed judge can simply assert that one, two, or all three of these reasons exist any time he wishes and thus justify overturning precedent. Well sure. Judges have and will continue to subvert the ideal of the rule of law but that doesn't mean--to Waldron or to me--that we should consider a polity's commitment to the rule of law to be a dead letter.

Several pragmatic reasons also exist for a court's limiting its power to overturn precedent. First, regular rejection of earlier decisions would eviscerate the overturning court's claims that its decision should have precedential effect. Second, a ramification of the principle of the rule of law augurs against changing laws too often. Waldron quoting Joseph Raz, "people will find it difficult to find out what the law is at any given moment and will be constantly in fear that the law has been changed since they last learnt what it was." Or, as Waldron personally puts it, rapid changes of the law "shows contempt for the dignity of ordinary agency and the ability of people to be guided by the law, internalizing it and self-applying it their conduct." Together Waldron labels the conclusion of these arguments as the principle of constancy.

Let's return to my initial question: Is constitutional positivism justified? On Tuesday I suggested that the burden is on the positivist to show that constitutional silence denies judicial constitutional precedent of precedential value given the common law orientation of the Founders. But I think this rule-of-law analysis shows more. No one can deny the Founders' commitment to the principle of the rule of law. If Waldron's argument is valid, the principle of the rule of law entails that earlier decisions count as precedent. Those decisions are themselves law. If so, ignoring those decisions by a subsequent court subverts the rule of law and is in a real sense itself unconstitutional.

Can a subsequent court overturn earlier precedent? Of course. While precedent is law it is not the Constitution. The principle of constancy counsels against lightly overturning precedent but judicial law, including judicial constitutional law, is not forever fixed. Yet for all those concessions I still believe that constitutional positivism is dead wrong and its "talk-radio" level of promotion should be resisted.

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