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Unlearning Constitutional Law
Take it from Yoda.
In a recent post on Marbury v. Madison, I mentioned Michael Stokes Paulsen, co-author of The Constitution: An Introduction and a clear thinker extraordinaire. I’ve been doing a little more reading from him, along with a bit from Ricochet’s own John Yoo. (It’s wonderful what you can download in PDF these days to read on your phone.)
Paulsen has a significant analysis of the role of stare decisis, the fancy Latin name for the principle that a court should follow precedent. More simply, it’s the idea that what courts have said in the past should determine what a judge says today.
This principle is big in the common understanding and practice of law in the United States. It’s why lawyers and judges have to know so many prior cases, especially prior Supreme Court cases. It’s also why, sometimes, that’s pretty much all they seem to be taught to care about. As Paulsen says in his (short, very readable) article “Everything You Need to Know About Constitutional Law”:
The problem with many bad Constitutional Law courses is that they are all about the precedents, and not at all about the Constitution.
He also notes in the sequel article “Citizens, Unite!” that:
[P]recedent … should never trump the written constitutional text, but might be useful for seeing what someone else has thought about an issue.
In the end, Paulsen doesn’t make much of stare decisis. Back to “Everything You Need to Know”:
The short answer to the problem of precedent is that some precedents are sound — helpful interpretations of the Constitution that can help resolve doubtful points — and other precedents are unsound, unhelpful misinterpretations of the Constitution’s text, structure, and history. That’s really all there is to it. The sound precedents are useful guides; the unsound ones should be regarded as having no authority or validity whatsoever.
In his more academic writings, he says the same. From “The Irrepressible Myth of Marbury” (pp. 626-7):
But even more fundamentally, when used in this strong sense of adhering to precedents even if wrong, stare decisis is unconstitutional. (In any other sense, stare decisis is simply irrelevant, or deceptive: a court that invokes the doctrine to justify a decision it was prepared to reach on other grounds is adding a makeweight, or using the doctrine as a cover for its judgment on the merits.)
And then, in of “The Text, the Whole Text, and Nothing but the Text,” Paulsen summarizes his earlier writer as follows (p. 1411):
[T]hat stare decisis, in the strong sense of deliberately adhering to precedents even if wrong, is unconstitutional, and that stare decisis, if employed in support of a result independently reached, is a pure makeweight …
Paulsen’s final conclusion, in “The Irrepressible Myth” (p. 628):
The doctrine [of stare decisis] should be repudiated entirely in the area of constitutional law.
We can condense all of this into an argument with a (modified) constructive dilemma form:
- Either a judicial precedent is consistent with the Constitution, or it is not.
- If it is consistent with the Constitution, then it adds no support to later decisions.
- If it is not consistent, then it is unConstitutional.
- If a judicial precedent either adds no support to later decisions or is unConstitutional, then judges don’t need to adhere to it.
- Therefore, there are no judicial precedents to which judges need to adhere.
This is what logicians call a valid argument, which means that if the premises are true, then the conclusion must to be true. The first premise has the form “Either A or not A;” that makes it a tautology, a statement that cannot possibly be false; so Premise 1 is true. And the other three premises seem only slightly less obvious to me.
If Paulsen’s argument is correct — and if I have reassembled it correctly — many of us have to unlearn nearly everything we thought we knew about Constitutional law. It would mean that there is no such thing as case law, no such thing as court cases with the weight of law (not as far as courts should be concerned, anyway).
But you Ricochetti are clever folks, and many of you have been to law school–unlike me. Do any of you know of some objection I should know about?
Published in General
Well, thanks everyone! I’m outta here for tonight, and tomorrow there’s travel, and then family–for days.
I can enjoy both of those things, but they don’t mix well this kind of conversation. I wish I could promise to retire from this thread: It would be so relaxing to retire.
But at least I can avoid promising to stay involved.
Well, you can trust me on this one. The Supreme Court has overturned prior decisions many times (see Brown v. Board of Education, for example), and will do so again. Which is why nominees are grilled on Roe v. Wade. Congress is well aware that it is entirely possible for the Court to overturn that decision – stare decisis notwithstanding.
Augustine: “He says courts should defer to Congress on ambiguity. They should drop the law on Congress like a ton of bricks when Congress goes against the Constitution.”
So Paulsen’s argument is that the court should apply the Chevron Doctrine to constitutional interpretation?
Augustine: “First: If there’s a real ambiguity here, then the federal Court’s job is to not take the case and thereby defer to Congress–or to take the case and uphold the law!”
If that is the case, Paulsen makes a profoundly non-textual argument. Article 3 section 2 of the US Constitution provides that the judicial power of the United States has jurisdiction over cases and controversies “arising under this Constitution.”
Do you mean that since the cases arise the court should take them? If so, you might be right there, but that doesn’t mean Paulsen’s wrong; it more likely means I was getting him wrong.
(A careful look at “The Irrepressible Myth” would probably be in order if we wanted to make sure.)
No, no. Marbury. See “The Irrepressible Myth.”
Paulsen in “Everything You Need to Know”:
Paulsen in “Citizens, Unite!”:
So, assuming Larry’s right, did Paulsen get it wrong, or did I just overstate Paulsen? (Hopefully the latter.)
Two things. First, I don’t know any lawyer who would say that stare decisis is a “much beloved” doctrine.
Second, there is a big difference between precedent generally and stare decisis. The Court cites many precedents in every decision. Rarely does it address the question of whether to overturn a prior ruling. Usually, precedents are cited as the starting point for analyzing a new question, or as a source of reasoning, or to demonstrate consistency, or as authority for legal principles that are relevant to the controversy but not disputed.
I believe this to be the crux of the matter: we haven’t specified a logical language and its semantic theory, so if we’re being formal, neither of us can actually make soundness claims. So I’d like to withdraw my claim that the formula is not sound, in favor of mu—the question is unasked.
Several previous commenters have essentially made the point that “legislation A is consistent with the Constitution” or its negation are not crisp distinctions we can all agree on. We’ve agreed they’re inductive conclusions. You do seem to want them to follow from LEM by a constructive dilemma, but if LEM witnesses anything, it’s the dilemma’s validity, not its soundness. Some have (perhaps unwittingly) made the point that propositions in their model can be compound—conjunctions, disjunctions, negations, implications, whatever—and even inconsistent. So we can think of models in which the formula is unsound, and there’s a suggestion those models may be more realistic than one in which it is sound (or at least, that’s how I’ve read some other comments). :-)
And thank you for the kind words! I just learned (the hard way) to be a computer scientist is to be an applied logician.
Yes, I think we’re all on the same page here, which is rather nice.
The Law of Excluded Middle would guarantee that one of them is true, which is the first premise of a constructive dilemma, not anything following from it. (As such, it is only a necessary condition for soundness, not sufficient; validity and the truth of the other premises are also necessary for soundness.)
My take away from Auggie’s description of Paulsen is that Paulsen doesn’t like the final score of the game and so he wants to play the game over. Paulsen thinks that he can see certain decisions where the Court got it wrong, and wants to correct those mistakes. Fair enough. All of us can identify many decisions where we think the Court got it wrong. Quite often, even some of the Justices themselves think the majority is getting it wrong – hence, dissenting opinions. But it just isn’t practical to keep relitigating the same issues over and over. If the Court thinks that a prior Court had made a serious mistake, it can and sometimes will go back and correct that mistake. But it isn’t going to do that every time some commentator expresses disagreement with a ruling.
Perhaps I’ve described him rather poorly. His analysis has nothing to do with the score at the end of the game, as he explains very clearly in his commentary on Amar in “The Text, the Whole Text, and Nothing but the Text.”
(And he confesses in “A Government of Adequate Powers” that he greatly dislikes some of the results of good judicial practice.)
He’s not much interested in relitigating old issues. He wants courts (and lawyers) to act, think, and write like the original written Constitution–and it only–is the supreme law of the land.
That means several things, including less attention to precedent–and also more attention to the original public meaning of the text, less attention to the results of a decision, and more deference to Congress when the Constitution’s text admits of a range of possible meanings.
He may make other points, but I am talking about his objection to stare decisis. Which is simply the doctrine that the final score is final.
Unless it’s not, of course. Because, as I said, stare decisis is merely a convenience and courts do overturn prior decisions. Just not as often as Paulsen would seem to want.
Larry #73,
Regarding the limited scope of your remarks: fair enough!
Regarding stare decisis, no, it’s not about that exactly–or not only. It’s more that points were scored by inappropriate means.
(And let’s keep in mind the strong chance that I’ve represented Paulsen’s views rather poorly at times.)
There is actually a pretty important point here, so I’m glad it’s come up (and if it should have come up sooner, that is no doubt my own failure).
The important point is this: It’s not the finality of precedent (even laws in the Constitution are not final, since we can amend them), but the derivation of judicial decisions from it.
I think this is the idea, stated succinctly: Neither precedent nor the Constitution is final; but only one of them is law.
The problem is, as Sal said earlier, there is almost never a clear, textual answer to any question in the Constitution. To illustrate, please read read the Second Amendment, and then tell me: Does the text of that Amendment guarantee my right to own a revolver? A semi-automatic rifle? A fully-automatic machine gun? A mortar? An Abrams tank? An F-16? A nuclear ICBM?
You can’t possibly answer these questions by simple reference to the text of the Second Amendment. The two extremist answers would be (a) anyone can own any weapon whatsoever, without any restrictions; and (b) the Court should completely defer to Congress to decide the extent of Second Amendment rights. I don’t find either of those extremes to be very satisfying.
The Constitution identifies certain principles, but the application of those principles require judgment and reasoning. The idea that legal questions can be determined by a purely mechanistic reference to the text of the Constitution sounds nice, but it does not survive any encounter with the real world.
This nicely squares the circle I think we’ve been going around. Thanks for that!
By the way, I must apologize if I came across as haranguing (Sal’s “hotly” comment is still ringing in my “ears,” I guess). I so rarely get to engage on logic with anyone outside my (extremely rarefied) field of “theoretical” computer science that I let myself get carried away, like a high school debater who’s mysteriously found himself on a GOP candidate debate on Fox News. ;-) Since you clearly take formal logic seriously, you may enjoy playing with one of the friendlier front ends to one of the powerful proof assistants folks like me use, such as PeaCoq or this interactive sequent calculus tutorial, which is probably notationally more familiar.
Cheers!
I didn’t get a haranguing vibe, and you totally got me on the limitations of the tautology remark to classical logic. (I still need to think about amending the opening post in light of that.)
It’s great to talk with someone who knows logic I don’t! (Namely the non-classical logic you mentioned at the time.)
It definitely guarantees the right to own an RC-P90 and a needler.
I am mystified. Neither extreme a nor extreme b describes Paulsen’s views (though on the spectrum between the two he’s closer to b). Nor does Paulsen advocate “a purely mechanistic reference to the text.”
Nah, you know what? Leave it. For anyone for whom LEM isn’t an “of course,” it’s good to make it explicit. And the constructive dilemma form is nice, and is valid. So that’s all good exposition, and I think I overreacted both to the exposition and to the soundness claim, or rather to my overinterpretation of it.
Oh yes! It’s interesting. Like everyone else who ever had a geometry class, I learned to do formal proofs in classical logic (and got a 100% on the tests, with a winking admonition from our teacher about busting the curve). I also bought my first computer. It wasn’t until decades later that I learned there is a 1:1 correspondence between “types” in programming languages and “propositions” in logic, and “programs of type X” and “proofs of proposition X.” “Types” as in Bertrand Russell! The hitch is the logic in question is intuitionistic, or constructive. There’s a great paper about this here, and presentations I’ve done with Amanda Laucher here and here. There are new programming languages that emphasize the correspondence, e.g. Idris, too.