Sunday, July 08, 2018

Stare Decisis

Road Map to Nowhere
Stare Decisis
Liberty at Crossroads
By Stephen L. Wilmeth

            The dust lay across the Corralitos basin like a Tule fog.
            It had taken 25 minutes to get from the highway to the backhoe parked under Swope Point. We were there to continue the repair of 13 miles of boundary fence. We were tired from previous days’ work. We paused only long enough to take in the big vista and to force drink big drafts of cool water. The day would be hot again.
The point itself is more than a high point on the Lazy E ridgeline. It has served as a promontory of observation longer than any man has walked around its base. It has witnessed many things. In fact, on its north side and a mile away where from where we stood, Mr. Swope lost his wife and one of their daughters in an Indian raid. He had gone to Picacho to get supplies and when he returned he found the mother and daughter slaughtered at their headquarters. After a search filled with great anguish and emotion, he found the other little girl hiding in the rimrocks up behind the house. She was traumatized. Mr. Swope was traumatized. The story goes that he buried his dead, packed up, and he and the little girl left the country. It had been suddenly and or slowly just too much to endure.
The fight had become more than any hope of success. In fact, he would have never been able to discern where success trumped the outright terror he faced that day. The reality is, the daunting expectation of our now 12 miles of fence yet to be repaired, pales in comparison to his horrors.
It pales in comparison to the horrors of many, many things.
Road Map to Nowhere
It is becoming more convincing that the Articles of Confederation probably protected individual liberty and local government in ways the Constitution has failed to do. The fault, in part, lies with inadequate language, the absence of a “definitions” in the document text, and the expectation that free and independent men would be honor bound to actually manage the wealth of the nation without creating independent empires. Indeed, the Framers have long been proven clairvoyant in their fear that bureaucratic overreach would result in the expansion of powers never intended.
Twenty trillion in national debt is clearly the marker illuminating that failure.
Aside from the lamenting how things ‘might’ have been, the truth is there is no method for self-correction. Certainly, we could look to men like Jefferson who suggested “a little revolution now and then was probably necessary”, but who wants to be the first to make that call?
Something else is preferred.
There is precedence in the Bible in both Deuteronomy (15:1) and Nehemiah (10:31) where God directed that all debts be forgiven after 7 years. We can only imagine how that would be received today, but what if it had been carried out in earnest and good faith from the onset?
The risk to the lender must be mitigated by the honor of the borrower. Implicit in the arrangement had to have been the absolute intention of repayment prior to the end of the seven years. Honor was the prevailing motivator and it was all encompassing.
It had to be, or the arrangement would never have been undertaken. What it did, though, was to create a method of rebalancing.
The importance has never been lost. If anything, it is more important today than ever. Our system, our way of life, and our very existence … cries for such a mechanism.
Liberty at Crossroads
What we know is that the cornerstone of the American model, the Constitution, contains 4,372 words.
It is not 50 titles and more than 30,000 pages of federal law. Similarly, it is not 133 volumes and 125,000 pages of federal regulations. It certainly isn’t a combined 155,000 pages of federal fine print.
It is 4,372 words of plain language.
We need to recognize two things. The first is the expansion of federal power through the agencies. Even laws are beginning to suffer from the assault of agency regulations written to carry them out and control them. The second thing that is becoming fully apparent is this idea of Stare Decisis (Latin for “to stand by things decided”) which is the general concept of adhering to precedence which is decided in a courtroom. Case law has long been the roadmap where our country wanders politically. The Constitution is now revealed only in campaign speech or periodic patriotic allegory.
That should change.
We must put a stop to Stare Decisis as being the adventurous and hypothetical roadmap that sets the next agenda journey for the Constitution.
A rebalancing mechanism must be found.
Stare Decisis
There is little need to debate the fact that the 28th Amendment to the Constitution should be the demand for a balanced budget, but the 29th should be the writ that every federal law be terminated upon its seventh anniversary. It goes away.
With its departure, every regulation written for its implementation also goes away. It should also be assessed in arrears for actual constitutionality by objective review and comparison to the Constitution, the legal bookmark of consequence.
If the issue is so important that it demands a new law or approach, it would be taken up by a future congress strongly represented by state protections. Perhaps most pressing problems could actually be fixed.
There is a suggestion that, if any one of us died three times and was resurrected solely for the purpose of figuring out how many laws and regulations really exist, we wouldn’t get the job done. That is insane, but so is $20T in debt and legal demands on our society that dwarf the Constitution word count by a multiple of … 142,000X.

Stephen L. Wilmeth is a rancher from southern New Mexico. “An equally good idea is to throw political parties into the sunset soup, too.”

From the Legal Information Institute

Stare decisis

Stare decisis is Latin for “to stand by things decided.”  In short, it is the doctrine of precedent.
Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines. Moreover, proponents argue that the predictability afforded by the doctrine helps clarify constitutional rights for the public. Other commentators point out that courts and society only realize these benefits when decisions are published and made available. Thus, some scholars assert that stare decisis is harder to justify in cases involving secret opinions.
The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court. Consequently, stare decisis discourages litigating established precedents, and thus, reduces spending.
Despite the legal stability afforded by stare decisis, it is not without negative externalities. Critics argue that the doctrine occasionally permits erroneous decisions to continue influencing the law and encumbers the legal system’s ability to quickly adapt to change.
Although courts seldom overrule precedent, Justice Rehnquist explained that stare decisis is not an “inexorable command.” On occasion, the Court will decide not to apply the doctrine if a prior decision is deemed unworkable. In addition, significant societal changes may also prompt the Court to overrule precedent; however, any decision to overrule precedent is exercised cautiously.
For a recent example of the application of stare decisis by the US Supreme Court, see Kimble v. Marvel Entertainment.  Our Preview of that case contains further discussion of the doctrine.
Courts, however, need not always adhere to precedent of prior courts. Courts are typically bound by decisions either they, or their superior courts, have made. For example, a federal district court (which would be a trial-level court) in New York is in the Second Federal District. That district court needs to adhere to a decision in a case made by a Second District Circuit Court of Appeals. Conversely, that same federal district court need not adhere to a decision made by any district or appellate court in any other district. The Second Circuit District Court may find that precedent to be persuasive, but the trial court in this example is not bound by that other districts' precedent. Although the precedent may not be binding, it may be extraordinarily persuasive, especially if the facts of the precedent case and the original court's rationale for its decision are very similar to the current case.
Stare decisis is typically used by common law legal systems. Civil law legal systems, however, place a stronger reliance upon statutes and ordinances for precedent. Every state in the United States use a common law system (which means they rely upon stare decisis), except for Louisiana, which retains a civil law legal system. Therefore, while Louisiana courts may rely upon previous caselaw, the reliance is much weaker than that of every other states' court systems.


Anonymous said...

The doctrine Of "Stare Decisis" allows the Judges become Gods who "legislate" from the bench which was not the intended purpose for the Supreme Court. The original intent of our founders was for the Supreme Court to simply apply the Constitution and the existing laws to cases they were reviewing. This business of allowing the Justices to "interpret" or add "new meaning" to the Constitution is nonsense. The Constitution is written in plain understandable English. Again the Justices are to simply apply it and the existing laws to the cases before them.. LES

soapweed said...

Ahhh yes....the old 'just us' legal system as further described as the "it's a big club, but you ain't in it" George Carlin, perhaps....?

Floyd said...

I like the concepts in Mr. Wilmeth's proposed amendments. For those of us who don't speak Hebrew, the Biblical seven year cycle was well illustrated by Jonathan Cahn is his book the "Mystery of the Shemitah" and other books. A concept that laws and regulations simply evaporate at seven years is a great idea.

Please ask Mr. Wilmeth to consider another idea for an amendment that would reform the judicial system. The Stare Decisis would go away if the Constitution were to eliminate life time appointment of federal judges and also instruct the Supreme Court that every decision must be unanimous or there is no decision. If the judges were all limiting their decisions to determination of an issue being Constitutional then there should not be any split decisions.

Frank DuBois said...

It is not the doctrine of stare decisis that causes the Supreme Court to "add new meaning" to the Constitution or to various federal statutes. If they are adherents to a "living constitution" then they are free to misinterpret and misapply the Constitution. Stare decisis may make it easier by citing as precedent misapplications, but even if they had to start from scratch on each decision they could still use the same faulty reasoning to misapply or "add new meaning" to the law.

Electing presidents who will only nominate judges who interpret by the plain meaning or original intent of the Constitution and/or electing a Senate who will only confirm that type of judge is the preferred option. Further, this type of judge would use the legal vehicles available to overcome previous, erroneous decisions.

In the long run, expecting the Federal executive branch to nominate and a Federal congress to confirm, Federal judges who will sit in a Federal court and limit the authority of the Federal establishment may just be asking too much. Limiting the jurisdiction of federal courts, as a beginning, would certainly help.