Scalia And… Tradition, Common Law, And Stare Decisis

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When I was younger, I was convinced that all we needed to do was to rationally apply the Constitution to any case to which it was relevant, and that would lead us to the correct decision. And I would feel absolutely appalled whenever someone said we were continuing some bad practice in society merely because of some ruling from some group of old men decades earlier. Why should we, the living, be ruled by the dead? Why should we continue to perpetrate the errors or the past, or keep abiding by rules and viewpoints which have become outmoded? It’s outrageous!

I was idealistic then, meaning I thought in terms of ideals and abstractions (and what other world does an inexperienced youth know but an IDEAL one? He can not know the real one for he has not truly experienced it yet). What I did not adequately appreciate at the time was how stupid people are…

The Constitution does not, of itself, rule. PEOPLE have to enforce, to interpret its words. And people are often irrational, biased, inconsistent, and foolish. This makes a legal system unbound by precedent dicey at best…

If we ONLY followed what each judge dictated at each case, we’d never know what the law actually was, because different judges would bring their own opinions into the mix. Even at the local level– especially if the local judge is an inconsistent one– this could prove injurious to safety and security, as well as to social and economic development.

This problem of individual interpretation is probably why other legal doctrines (besides my youthful idea of, Just look to the text, stupid!) has come into play over the centuries. In particular, I am referencing the doctrines of Common Law and stare decisis (“to stand by things decided”)…

Common Law, to my understanding, is sort of nebulous, but it is basically a body of rules which is considered by most people to be the law of the land. It is based, I would imagine, on countless cases stretching far back into history, but specifically unremembered, or at least unreferenced.

The English system –and by heredity, the American system– of jurisprudence is actually based on Common Law, although I’m not sure the average citizen realizes that; we have been gradually moving more and more toward a Legal Code basis, and the Supreme Court doesn’t appear ever to use Common Law as the foundation for any of its opinions– albeit a Justice who reverences tradition, such as Antonin Scalia, will sometimes cite Common Law in a sort of supplemental way. However, even as recently as the 19th century, Justice Holmes (as sometimes quoted by Scalia) declared that “a page of history is worth a volume of logic,” meaning, as I take it, that when deciding a case, a judge would do well to check his arrogance and put more stock in the traditions of the past then in the faulty human reasoning of the moment.

Stare decisis is when we show deference– indeed, abide by– specific and known court rulings from history, typically from fairly recent history (within, say, the last hundred years or so, but it can stretch farther).

I really, really rebelled against the concept of stare decisis as a young adult; I can’t overstate my then-disdain for the practice. The only thing the people in the past had ever proven to me was that they were cruel, prejudiced, and idiotic. Indeed, I still contend that any adherence to stare decisis should not be rigid, but malleable.

However, I have grown to appreciate the value of stability in society. It is easy to rebel against stability when things are stable and when you’re young and have no more than an idealized view of death and the true horrors of this world. With more stability comes more security– and how many people now and during the history of the world would have given their left arm for some additional security in their lives?

As long as society is stable, everyone has a pretty good idea of what is allowed and what is not allowed. This helps immensely when making decisions for the well-being of one’s family or business enterprises (and for most of us, the well-being of our business enterprise IS the well-being of our family). Common Law and stare decisis provide a semblance of stability in a shifty world. I would go so far as to argue that even non-egregious, non-optimum –but stable– laws can sometimes be better than quick-shifting laws that sputter this way and that, aiming to be the “perfect” law for the case at hand.

In Lee v Weisman (1992), Scalia writes that “our nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.”

Justice Scalia believes that a predictable legal system provides people with certainty and consistency as to what is legal or not legal. For the same reason, that of predictability, the law should also apply equally to all persons and classes. In this sense, “justice” does not enter into it so much as “fairness,” if you get my drift– the consistent application of the legal system, Just or not. “Justice” is what?– some ideal impossible to quantify, impossible to achieve, impossible to know if we have achieved (try putting onto one side of a scale Murder Of A Loved One, and on the other side, a Death Sentence For The Guilty– there’s no balance there).

Fairness in the application of the law is the big reason why we, as a race, started demanding that our laws be written down. For ages, the law was just whatever the local Lord or judge said it was. And even if it had’ve been written down, most people could not have read it anyhow, illiteracy being the rule not the exception of history. Of course, the legal diction of modern times has become so convoluted and barnacled with archaic terms and turns of speech, that we have practically returned to state of illiteracy, as far as our written laws and contracts go. But that’s a subject for another post…

The “principal function” of the Supreme Court, writes Scalia in U.S. v Virginia (1996), “is to establish precedent– that is, to set forth principles of law that every court in America must follow.” He continues, “we expect both ourselves and lower courts to adhere to the rationale upon which the Court based the results of its earlier decisions.”

Like myself, Scalia does not suggest that judges should be unthinking slaves to past judicial decisions… I do not myself believe in rigid adherence to stare decisis in constitutional cases,” he states in Lawrence v Texas (2003), “but I do believe we should be consistent rather than manipulative in invoking the doctrine.”

In the same case (of which Scalia’s opinion was actually in the minority) the majority of judges set for a rationale for over-turning precedent which Scalia summarized (unapprovingly) as follows: A precedent is a candidate for being overruled if… ” 1) its foundations have been ‘eroded’ by subsequent decisions; 2) it has been subject to ‘substantial and continuing’ criticism; and 3) it has not induced ‘individual or societal reliance’ that counsels against over-turning.” This actually sounds fairly reasonable to me, but Scalia was having none of it.

From the opinions of Scalia I have read so far, he seems willing to give any and all levels of government great leeway if the purpose of their activities is to uphold traditional national values, provided of course, that such laws or interpretations do not violate the Constitution (though again, we come back to the problem of individualized interpretation of the law).

Tradition As A Form Of A Legitimizing Precedent

Scalia’s most notorious opinions often come down to a decision as to what is or is not behavior protected by the Constitution. Ring informs us in his book Scalia Dissents that in cases concerning a law forbidding a certain activity, Scalia first looks to the Constitution, and if the Constitution is silent upon the activity, he then looks to see if… “the long-standing traditions of American society have permitted it to be legally proscribed.” If so, he’s fine with continuing to allow such behavior to be forbidden. But yet again– there is a great difference of opinion as to what is Constitution says or does not say. This is the forever-problem of Constitutional Law.

I think that for Scalia, national traditions provide a sort of necessary putty which goes between the bricks of law and holds the State-edifice together. Instead of relying on one man or woman’s opinion as arrived-at through the narrow alley of some particular case, we can look to the wide plains of the past’s accumulated wisdom and be guided by the decisions of those before us. Scalia speaks in United States v Virginia (1996) of “those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts.”

Speaking of the long-standing tradition of the various governments of the U.S. to regulate morals within their communities, Scalia writes in Rutan v Republican Party (1990): “When a [legal] practice not expressly prohibited by the text of the Bill Of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.” The American society, says Scalia, has prohibited some things simply because they’re just plain wrong.

There is no basis for thinking that our society has ever shared that Thoreauvian, you may do what you like so long as it does not injure someone else beau ideal— much less for thinking that it was written into the Constitution,” writes Scalia in Barnes v Glen Theater (1991), adding that there exists “a substantial government interest in protecting order and morality.

“The law is constantly based on notions of morality,” asserts Scalia, quoting the Bowers v Hardwick decision.  Numerous laws, he maintains, essentially boil down to moral choices. “Our society prohibits, and all human societies have prohibited,” he continues in Barnes, “certain activities not because they harm others but because they are considered, in the traditional phrase, contra bonos mores, i.e., immoral.”   

Scalia concurs with the Paris Adult Theatre I v Slater decision that the State has a right “to maintain a decent society.”  Thus, laws prohibiting activities purely on MORAL grounds are completely legit. For Scalia, moral considerations make for an acceptable “rational basis” for passing laws, even laws against so-called victimless crimes or laws regulating conduct between consenting adults.

It is Scalia’s view that the government can encourage or facilitate Religion and Morality IN GENERAL, just not a specific religion. He believes that the government has an interest in “fostering respect for religion generally” and that “respect for the religious observances of others is a fundamental civic virtue that government (including public schools) can and should cultivate.”

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