The Danger of Legal Precedents
When a precedent relevant to one question is applied to a largely unrelated one, a travesty of justice can result.
I recently wrote about the original intent of the First Amendment’s establishment clause — and alluded to how the Supreme Court (and even more so, the ACLU) has unmoored itself from that original intent. Part of the problem is the role of precedent.
For those who weren’t paying attention in high school government class: stare decisis is the legal principle that if there is an existing judicial decision about a particular issue, courts should usually follow that existing precedent. There should be serious evidence that the existing precedent was wrongly decided, or produces serious inconsistencies or injustices, before a court overturns it.
One of the arguments in favor of stare decisis is that a stable court system — one where everyone knows the rules, and where the rules don’t change suddenly or capriciously — is of value in and of itself. This can even be true if there is a little bit of injustice or absurdity in the results.
There are serious problems with this worship of precedent. One is that judges often send their law clerks to look for precedents that justify the results that they have already decided “make sense.” Because appellate judges don’t see the victims of these horrible crimes before them, or the physical evidence, or hear the witnesses, it is easy to see this process as simply a fascinating intellectual game.
The bigger problem, and the one that I can tell you goes deep into American history, is the problem of interspecies breeding. By that, I mean that a precedent that is relevant to one question gets used to decide another question that has a superficial similarity — but other differences mean that it really doesn’t apply. Unlike trying to breed animals of different species (where the results, if any, are usually sterile), continuous interspecies breeding of precedents just produces increasingly bizarre offspring.
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Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006), is available in bookstores. His web site is www.claytoncramer.com.
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38 Comments
1. Moho:Are you really going to discuss original intent, you gun-loving maroon? Its quite clear that the original intent of the framers for the second amendment was to ease the states’ concerns about maintaining their own militias. The only thing that’s allowed the second amendment to be interpreted in the fantastical way that gun-enthusiasts prefer is precedent! My god…
Oct 20, 2009 - 8:02 am 2. Clayton E. Cramer:Are you really going to discuss original intent, you gun-loving maroon? Its quite clear that the original intent of the framers for the second amendment was to ease the states’ concerns about maintaining their own militias.
Language was proposed in Congress to guarantee authority of the states over their militias. The proposal was voted down. See 1 Journal of the Senate 75
When James Madison introduced the Bill of Rights, he addressed both the concerns about federal vs. state power, and concerns about protection of individual rights–and specifically rejected changing the federal vs. state power equation, explaining that some people objected to the new Constitution because
. See 1 Annals of Congress 450. Clear enough? He was telling those who were concerned about the national government having too much power over the states to pound sand; he was protecting individual rights from the new national government.
There was an attempt in the Senate to add “for the common defence” to the right to keep and bear arms part (which arguably might support your claim)–and it was voted down. See 1 Journal of the Senate 77
Oct 20, 2009 - 9:08 am 3. Clayton E. Cramer:The only thing that’s allowed the second amendment to be interpreted in the fantastical way that gun-enthusiasts prefer is precedent!
You don’t realize that the gun control crowd, when Heller went to the Court, swore up and down that the Court needed to follow existing precedents such as:
U.S. v. Cruikshank (1876): which let a bunch of Klansmen off the hook for disarming freedmen–after committing mass murder.
Presser v. Illnois (1886): the law was designed to intimidate labor unionists).
Miller v. Texas (1894): where the defendant’s original crime was having a black common-law wife.
U.S. v. Miller (1939): a case where only the prosecutor filed briefs, and which was intentionally staged to get a favorable ruling–and even then, the results were so equivocal that several decades of federal judges made false statements about what that decision found!
Oct 20, 2009 - 9:23 am 4. Dblade:Seems like a no-win though. If they don’t use precedents, they get called “activist judges” if they do, they risk this.
Oct 20, 2009 - 9:26 am 5. Clayton E. Cramer:If they don’t use precedents, they get called “activist judges” if they do, they risk this.
I wasn’t saying that use of precedents is wrong; but judges should make sure that:
1. They are using a precedent appropriate to the case before them.
2. Be prepared to admit that the existing precedent that is appropriate was wrongly decided, when it clearly is.
Activist judges use and misuse precedents, too.
Oct 20, 2009 - 9:37 am 6. Moho:Klayton. You know as well as I do that the Bill of Rights was not introduced out of a concern for the individual, but a state level concern for aggregation of powers to the Federal Government. It was nearly another hundred years before the states themselves began extending the bill of rights to its own residents—that’s how concerned they were about individual rights–and they only did so because of the Supreme Court.
Oct 20, 2009 - 10:17 am 7. RightwingHippyChick:Attempting to use precedence is not a bad method, it is originally meant to make a level playing field (equal crimes should be punished equally) but when it’s administered by a kangaroo in a judge’s robe, no amount of law, precedent or sense will be of use.
Cull the kangaroos amongst the judges and the problem will go away — a judge who bends the law is the worst criminal of them all, and we should start going after them, for the sake of justice.
Oct 20, 2009 - 10:21 am 8. SPQR:In addition to Clayton’s point, claiming that the Second Amendment was to assuage state concerns over their militias has obviously ignored the language of the amendment and ignored that Article I had provisions for the states’ militias.
Oct 20, 2009 - 10:25 am 9. SPQR:Moho, you’ve gotten the extension of the Bill of Rights to the states completely backwards. First of all, many states themselves already had “bills of rights” of various forms in their constitutions, and secondly, the extension of the Federal Bill of Rights to apply to the states was not done by states themselves, but by the 14th Amendment – although the Supreme Court initially resisted this with the decision mentioned above as well as the Slaughterhouse cases.
Oct 20, 2009 - 10:28 am 10. Michael:I always enjoy seeing Moho gets schooled.
The precedent problem is just one of two dangerous uses that politicians and judges have for changing the rules.
The other horror perpetrated on this country it the “living” Constitution crap. At least it is crap the way many activist judges and politicians foist it at the citizens. The Constitution is living in that it may be amended by the vote of the people as set down in the Constitution itself. Not the “it means what we need it to mean” crowd who try to suppress citizen rights by undermining our founding document.
Oct 20, 2009 - 10:28 am 11. Michael:Mojo, please don’t start that KKK thing again.
Oct 20, 2009 - 10:30 am 12. Moho:Firstly, yes the states extends the bill of rights to citizens. They do this via state law that reflects federal law based on the 14th ammendment and the Civil Rights Act. Secondly, read this:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Its quite clear that the purpose of the freedom to bear arms was only in the context of maintaining a militia. I say its obvious, because its the four words of the sentence. Thus, its also quite obvious that no right to bear arms extends beyond the context of militia. The states having taken up the militia as a state run enterprise only, there is currently no right to bear arms. The context which conferred that right no longer exists. It is a right, much like the 3rd amendment that has been rendered moot by the structure of both state and federal government.
Oct 20, 2009 - 10:39 am 13. Clayton E. Cramer:Klayton. You know as well as I do that the Bill of Rights was not introduced out of a concern for the individual, but a state level concern for aggregation of powers to the Federal Government.
Sorry, but James Madison, who introduced the Bill of Rights, said differently. And your source is?
If this was true: why does the Second Amendment not guarantee a right of the states, instead of a right of the people?
It was nearly another hundred years before the states themselves began extending the bill of rights to its own residents—that’s how concerned they were about individual rights–and they only did so because of the Supreme Court.
Your ignorance is showing. The states did not do this, except by ratifying the Fourteenth Amendment–and even then, the Supreme Court played silly games with decision such as the Slaughter-House Cases and Cruikshank to avoid doing exactly that.
Of course, as others have pointed out, most states had their own bill of rights contained in the state constitution, which limited state power.
Oct 20, 2009 - 10:48 am 14. SPQR:Moho, your comment about states extending the federal bill of rights via state law makes no sense and is completely wrong in the historical sense as well as the constitutional sense.
Secondly, Eugene Volokh has long ago demolished your argument about the second amendment existing only in the context of maintaining a militia. He demonstrates that the introductory clause is a justification of the right, not a limitation upon it ( which is also obvious grammatically ). Prof. Volokh shows contemporary state constitutions such as Pennsylvania’s which had similar justification clauses that were not limitations upon the right. Contemporary constitutional commentators like Justice Story in his treatise show that your argument is a later construct and does not reflect the understanding of the time.
Nonetheless, the Heller decision rejects your argument, as does the Ninth Circuit ( Nordyke ) and the Fifth Circuit. So your “Its quite clear …” is just false.
Oct 20, 2009 - 10:50 am 15. Clayton E. Cramer:Firstly, yes the states extends the bill of rights to citizens. They do this via state law that reflects federal law based on the 14th ammendment and the Civil Rights Act.
Wrong again, Moho. States change their laws to conform to what federal judges have ruled that they must do under the Fourteenth Amendment. That’s what the whole substantive due process jurisprudence has accomplished. But the states didn’t do this voluntarily; that’s why the Supreme Court has heard so many cases along these lines.
Its quite clear that the purpose of the freedom to bear arms was only in the context of maintaining a militia. I say its obvious, because its the four words of the sentence.
And what, exactly, do those first four words require or impose? At least if you had quoted the first phrase, you could argue that this was intended to set a context, but the first four words do nothing at all. It would help if you actually knew something about how Madison’s initial proposal (three independent clauses) went through the legislative process. But because you know nothing about that, you are like a fundamentalist insisting that they know exactly what God means because they have read the King James Version of the Bible, and that’s all they need to know.
Thus, its also quite obvious that no right to bear arms extends beyond the context of militia. The states having taken up the militia as a state run enterprise only, there is currently no right to bear arms. The context which conferred that right no longer exists.
You are wrong yet again. See 10 USC 311 for the federal definition of unorganized militia. And nearly ever state has an equivalent definition of unorganized militia. More importantly, the Second Amendment protects a “right of the people” not a “right of the states” or a “right of the militia.” As a number of those debating ratification of the Constitution pointed out, the militia and the voters were very nearly identical in 1789.
Oct 20, 2009 - 10:55 am 16. Clayton E. Cramer:The other horror perpetrated on this country it the “living” Constitution crap.
Yes, I published something here about the living, breathing, constantly mutating Constitution some weeks back.
Oct 20, 2009 - 10:56 am 17. Clayton E. Cramer:I’m really confused by Moho. It isn’t even that he is making the gun controller’s historically wrong, but at least logical arguments. It is that he doesn’t know anything about the history of the Bill of Rights, or of the 14th Amendment, or the challenges that led to the 14th Amendment. You can read a detailed paper by myself, Professor Nicholas Johnson, and George Mocsary (who is clerking for a U.S. Court of Appeals judge) here. There was overwhelming agreement in the period 1791-1866 as to what the Second Amendment protected–and guess what? It matches what the original intent documents show: an individual right, certainly motivated by the need to keep the government afraid, but only a few cranks tried to argue that it didn’t include a right to individual self-defense.
Oct 20, 2009 - 11:00 am 18. SPQR:The complete inversion of the effect of the 14th Amendment, and the ignorance of the process to weaken it at the Supreme Court, does make Moho’s insistence of the stupidity of others rather humorous. Sadly so.
Oct 20, 2009 - 11:07 am 19. Moho:Sorry, but James Madison, who introduced the Bill of Rights, said differently. And your source is?
Ho, ho, ho. Subjective attention much? Madison argued against Federalism with the Virginia Plan, remember? His arguments were the product of pragmatism. If you want to judge intent, you can’t judge it from the arguments of the nation’s first sausage-makers. The only intent one can discern is the intent derived from the actual verbiage of the constitution. Anything else is selective and biased. Its quite clear that Madison, had he had his intent, would have created a national government with almost no state autonomy.
Oct 20, 2009 - 11:48 am 20. Moho:SPQR. Your first point was simply a restatement of what I’d already written. You act as if we’re in disagreemnt, and we aren’t. But you’ve given Klayton something to sink his teeth in now that his argument has fallen apart. What I see is someone who can’t argue their position, simply cutting to the conclusion and saying they won.
Oct 20, 2009 - 11:54 am 21. Michael:The bills as written and then as argued and then as enacted are what the bills are. Any “dancing on the head of a pin” arguments are just your own flights of fancy.
Oct 20, 2009 - 12:02 pm 22. Clayton E. Cramer:Madison argued against Federalism with the Virginia Plan, remember? His arguments were the product of pragmatism. If you want to judge intent, you can’t judge it from the arguments of the nation’s first sausage-makers. The only intent one can discern is the intent derived from the actual verbiage of the constitution.
So Moho wants to ignore everything but the actual text. Well, there’s not much to discuss then, is there?
Yes, Madison argued against federalism. But so what? He introduced the Bill of Rights. There were some debates about different provisions. But on the few occasions when someone seems to have argued for your reading of the Second Amendment–they lost the vote! And oddly enough, for many decades, the only people making the argument that you make about the Second Amendment are two Arkansas Supreme Court justices–who aren’t even consistent in their arguments.
Oct 20, 2009 - 12:17 pm 23. Clayton E. Cramer:SPQR. Your first point was simply a restatement of what I’d already written. You act as if we’re in disagreemnt, and we aren’t.
Uh, no, Moho. He didn’t agree with you. He pointed out that the federal courts have come around to the originalist viewpoint. That’s hardly an argument for the power of precedents. It’s an argument for the weakness of precedents, when those precedents are wrong.
Oct 20, 2009 - 12:19 pm 24. j huettl:MOHO..If you purpose the the second amendment only concerns the militia. Then why would you presume that people are not the militia. If the militia is charged (ARTICLE 1 SECTION
with enforcing the laws of the United States. I then ask “when was the time the regulated militia performed as prescribed in the constitution?”
Oct 20, 2009 - 12:42 pm 25. myth buster:A second question arises in your assumption of people/militia as to why would a people (person) need to protect themselves from a Well Regulated Militia. The answer might be that when the Militia is called to preform its duty the community is left without protection. This question was raised during the debates to Mr. Hamilton and even Mr. Hamilton was STUMPED as to an obvious answer. But the question was resolved in that the US would provide for the arming and training of the Militia (see section 8 of article 1 again),,If you think tat the Militia is GONE then try to remember when Pres Clinton tried to shut down the CIVILIAN MARKSMANSHIP OFFICE on a budget crunch. Had he done that then the only trace of the militia in the constitution would have evaporated.
The militia is every able bodied and mentally fit person in the country.
Oct 20, 2009 - 1:54 pm 26. Don Rodrigo:Moho:
Nothing is ‘quite clear’ in the manner you insist on regarding the 2nd amendment. In their personal correspondence with each other on the constitutional issues that summer of 1787, a number of the founders were quite clear that the 2nd amendment protected the right of individual citizens to own firearms, period.
Oct 20, 2009 - 3:53 pm 27. Oscar the Grump:I really enjoy watching Moho being handed his a**. Take note whenever you score some serious points against him, he will disregard them as inconsequential.
Oct 20, 2009 - 3:58 pm 28. Don Rodrigo:Good article. I too have always had a problem with this nonsense about “precedent.”
I never understood the lemming-like and spineless habit of jurists who rule based on what some past judge(s) had done, even if the previous ruling bordered on the stupid. Had this habit of sheepishly following “precedent” been ingrained from our inception, then we’d still be abiding by the Dredd Scott decision and Plessy vs Ferguson. I’m convinced that the 4th amendment has been corrupted (it is now used to suppress evidence that is relevant and vital to proving a crime) due to the notion of precedent.
Oct 20, 2009 - 4:00 pm 29. Tom DeGisi:I have often seen something clearly and been unable to express it or defend it. Maybe Moho is in the same boat, but doesn’t realize that he hasn’t expressed or defended his views well enough. So far I am not even persuaded that Moho’s comments in this thread present clear points or that he is defending them.
I’ve seen Moho do better at both. I suspect haste and multitasking.
Yours,
Oct 20, 2009 - 5:03 pm 30. Fantom:Tom DeGisi
10. Michael:
I always enjoy seeing Moho gets schooled.
Then indeed you are a blessed individual. As there is much joy in your life.
Oct 20, 2009 - 5:24 pm 31. Moho:Clayton:
Uh, no Clayton
He didn’t agree with you. He pointed out that the federal courts have come around to the originalist viewpoint. That’s hardly an argument for the power of precedents.
That’s not the point I was talking about. I argued that the states only accepted the bill of rights as applicable to them once they were forced to. As for the rest, when you’re right, Klayton, you’re right. I don’t think you’re right, actually, but I didn’t have the time to do the research to do my point justice. And when that happens, I’ve the integrity to admit that I’ve lost. Enjoy the sweetness of it, Klayton Kramer [I leave off the K for savings], it must indeed be a rare moment.
As for the rest of you clowns, I will take your gloating as proof positive that I’m generally in pwnership of you all. Thanks for letting me know.
Oct 20, 2009 - 8:03 pm 32. AD - RtR/OS:“The militia is every able bodied and mentally fit person in the country.”
Moho need not apply.
Oct 20, 2009 - 10:09 pm 33. RichK:Shorter Moho:
I’m right and I know it but I don’t know why. And I win because you’ve all managed to prove me wrong with actual facts and links but don’t realize I’m right!
Ah, the enlightened, progressive mind on display.
Oct 21, 2009 - 6:59 am 34. Clayton E. Cramer:Moho claims:
That’s not the point I was talking about. I argued that the states only accepted the bill of rights as applicable to them once they were forced to.
But what he actually said was:
Firstly, yes the states extends the bill of rights to citizens. They do this via state law that reflects federal law based on the 14th ammendment and the Civil Rights Act.
And:
I don’t think you’re right, actually, but I didn’t have the time to do the research to do my point justice.
Meaning that he was pulling his claims out of heart, not his brain, and realizes that he can’t defend his position without doing some, you know, reading.
Oct 21, 2009 - 7:27 am 35. Clayton E. Cramer:As for the rest of you clowns, I will take your gloating as proof positive that I’m generally in pwnership of you all.
In much the same way that a rapist being sent to prison has exercised control over his victim, a jury, a judge, a prosecutor, police, and jailers. At the end of the process, the rapist can gloat about how much power he has–while confined to a cell for many years.
Oct 21, 2009 - 7:29 am 36. mdbostnmt:The comments have been as entertaining as the article. I really liked the (not so) subtle touch of adding the ‘K’ to Mr. Cramer’s name: ad hominum+ lack of substance! Brilliant, Moho! Bring your A game next time.
Oct 21, 2009 - 10:35 am 37. Sulla:On the topic of precedents, it is an axiom of the law that a lawyer who can’t find a precedent to support his position is a pretty lousy lawyer.
It was Justice William O. Douglas who wrote that as a new justice he was advised by then Chief Justice Hughes that the easiest way to write a judicial opinion was to first decide which side should win and then gather the precedents to support that decision.
As an example of your point, a few years ago somebody actually made the argument that the Austrian born Governor of California could be elected Vice-President, or even President. The crux of the argument was that notwithstanding the text of the Constitution, there was no precedent interpreting the “natural born” qualification for President. Until the Supreme Court ruled, why couldn’t he run? (In fact I just saw a post on the BBC website that reported the Nicaraguan Supreme Court threw out the express presidential term limit constitutional provision).
The basic problem the Constitution existing only within case law is that it makes the Supreme Court a permanent constitutional convention. But as one justice noted: “The Supreme Court is not final because it is infallible, it is only infallible because it is final”.
Finally, as to the issue of state constitutional Bills of Rights, the states may confer greater individual liberty than required by the Federal Constitution.
Oct 22, 2009 - 2:20 pm 38. Clayton E. Cramer:Brilliant, Moho! Bring your A game next time.
That was his A game.
Oct 23, 2009 - 7:24 am