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Friday, September 02, 2005

More on Stare Decisis

T. More,

Would you distinguish constitutional stare decisis in other fundamental rights contexts, i.e. the incorporation cases or the equal protection clause as it pertains to women, even Brown?

Roe is obviously shaky and I wholeheartedly agree that it "refuses to settle a particular question of individual right persuasively." But there are many other such decisions in gender discrimination, and particularly in criminal procedure that establish rights just as unpersuasively as a matter of original meaning. But no one seems to think we should overrule these.

So do we distinguish Roe because the nature of the right is so terribly immoral that we cannot overlook its unsound reasoning as we can in gender discrimination and rights for the accused? No sensible person thinks that Brown is immoral, and few think cases like Craig v. Boren and Gideon are immoral. But that, to me, is not using stare decisis neutrally. In the words of our beloved HPM (88 Colum. L. Rev. 723, 743):
Because a coherent rationale for the intermittent invocation of stare decisis has not been forthcoming, the impression is created that the doctrine is invoked only as a mask hiding other considerations. As a result, stare decisis seemingly operates with the randomness of a lightning bolt: on occasion it may strike, but when and where can be known only after the fact. A satisfactory theory of constitutional adjudication requires more than that.
So I don't think this answers the question. I don't think your structural/rights dichotomy completely works. Even if one takes the position that the rights precedent can be overruled, even for cases like Brown, Craig, and Gideon, because the rights are so ingrained that they would immediately be reinstated legislatively, that doesn't account for the effect of the precedent on shaping those values so that such would take place.

That many consider the right to have an abortion on par with their right to counsel or right to equal protection because of their gender leads me to believe we need a better theory of stare decisis. You say "
if the reason we are asked to stick to [Roe and Casey] is policy and not law, I say no way." But policy here, I think, should mean what role stare decisis plays in our jurisprudence. We need to place precedent within originalism and develop neutral principles for its invocation. Otherwise it's Monaghan's lightning bolt.


Blogger T. More said...

I think you have answered your own question--those cases which nobody seriously questions can be left undisturbed. That's part of my "restrospective constitutional moment analysis"--it could theoretically happen for Roe, but it seems quite clear to me that it has not as yet. As I suggested, Griswold seems to have a level of support, or at least of non-opposition, that makes it silly to imagine that it needs to be overruled in order to "tidy things up."

So I don't think it's impossible to find neutral principles that distinguish Roe from other cases. Now, there are no doubt libertarians who think we should have more controversy over, say, commerce clause jurisprudence. And they bring cases to the courts from time to time. Nevertheless, there does not seem to be a significant national sense that our expanded federal powers need to be radically curtailed, there are not fundamental rights at stake, and insitutions and expectations have grown up around the current regime. Not a result-oriented list of criteria, and again distinguishable.

10:23 AM  

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