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Saturday, June 25, 2005

Stare Decisis & Persuasion

I finally had a chance to read Justice Stevens's very persuasive opinion in Kelo. It is persuasive in a couple of refreshing ways: it is honest enough to admit that the meaning applied in this case to a 200 year old clause is but "100" years old. Who would not admit that, once we converted "use" to "purpose" (without changing that pesky text, which, as Brian Leiter recently noted in a bizarre rant on originalism, is just there so we have "words"--not so we have "meanings"; thus, when we make those stubborn old words take on new meanings, we get the constitution we want and a nice piece of harmlessly antique verbiage...everyone's a winner!) it does not make sense to read the "words" as written? Heck, for all you know, these little "words" you are reading are actually a paean to non-originalist jurisprudence! (Or do you think you espy meaning here, you dogged originalist!)

It is persuasive, therefore, that you if you are willing to give up on the original meaning then you can find your way to the novel meaning; further, if the novel meaning is very broad, then it can even be broad enough to encompass this "Sam's Club"-sized version.

But this raises for me a curiosity. The majority opinion goes to great pains to note that it is not for courts to do the sort of policy analysis that underlies the legislative judgments involved in seizures of this sort. Yet both to account for the original shift from the "narrow" view of "use" as "use" to the "more natural" view of "use" as "purpose" (!!!--you can't make this stuff up, folks) and to account for its inexorable widening over the years, Justice Stevens (perhaps to satisfy the niggling qualms of those, like my stubborn self, who don't "naturally" read "use" and understand "purpose") shares with us that the "evolving" nature of society has rendered this less "narrow" "reading" necessary.

Hmmm. That sounds less in the nature of interpretation, and more in the nature of a policy judgment. Indeed, as I have written elsewhere on this blog, the doctrine of stare decisis seems to me essentially pragmatic (and therefore ineluctably policy-oriented). Stare decisis needs to be invoked when nothing else justifies a particular reading of the constitution. But we know from, say, Lawrence v. Texas, that certain members of this majority (all of them) don't think of stare decisis as always applying. Therefore they need some reason, it seems to me, for sticking with the original error. And if the reason is some sort of "evolving" necessity, then saying that courts can't judge of the practical details beyond a mere "rational basis" (or there's the "rational basis plus not-a-sham" test of Kennedy's concurrence) standard strikes me as an utterly question-begging approach.

So we have the Court acknowledging that (a) its reading of the text, though "natural" has only been so for 100 years; and (b) that that reading is supported by practical judgments about "evolving" needs; and (c) the constitution, whose "words" do not constrain these evolving needs (nor, it appears, evolving meanings) does constrain judges from thinking too hard about them. It would seem that the court is permitted to think only superficially about whether changing needs have changed the meaning of the Constitution, and then defer to a minimally rational legislative judgment. But, fusty ol' me, I thought it was "emphatically" the "province and duty of the Judicial Department to say what the law is"...

Are you persuaded?

P.S. I had some thoughts about how this hundred-year old novel reading of "use" as "purpose" has the air of collectivism about it. But that might suggest that such a reading partakes of a kind of domestic "socialist revolution." And that would put me in league with the likes of D.C. Circuit Judge Janice Rogers Brown, and I eschew such radicalism. So I'll keep those thoughts to myself.

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