Tuesday, November 15, 2005

Burke and stare decisis

Okay, I can finally get to that Publius post that mouldfan discussed in this post below. Click for the full monty. Right off the bat, I will express my full approval of this statement:
For instance, as I’ve argued before, the neocons are the intellectual heirs not of Edmund Burke, but of the French radicals whose abstract visions Burke so passionately opposed.
Indeed. I've alluded to this in the second part of my American conservatism series, but there is a class of conservatives that fall outside of the Burkean camp, and the neocons are them. My only qualification is that this term has been overused, but that will be the topic of a future post (perhaps tonight).

On to the meat of Publius's post. To be blunt, there is not much to argue with. First, to better understand where Publius is coming from, you should be made familiar with Southern Appeal's Steve Dillard. Steve, like Justice Clarence Thomas, does not have much respect for the concept of stare decisis. In fact, he is famous for the quip "stare decisis is fo' suckas." Well, Publius is struck by the un-Burkean sentiment contained in this idea. His understanding of Burke is pretty accurate (also see the first part of the American Conservativism series here). Let me quote Publius more extensively:
For instance, one reason I feel more secure in “knowing” that Shakespeare was objectively good is that so many subsequent generations (in many different contexts) have embraced and celebrated his plays. Literature grad students can whine about the contingency of the Western canon, but they also have to reckon with the fact that it’s lasted many centuries. Continuing appeal through time is the test for greatness – that is, whether the work continues to resonate beyond the period of its creation. For example, I think the Beatles will pass this test and will eventually take their place beside Beethoven – whereas Britney Spears will probably be unknown in a 100 years.

Ok, I got sidetracked a bit. But you can see where I’m going with this. Stare decisis is very similar to Burke’s collective wisdom of the generations. If a precedent has been reaffirmed over many decades, that means that successive generations have found value in it. And the fact that successive generations have found value in it makes it more likely that there is value in it – even if the value can’t necessarily be articulated.

Again, it’s like Shakespeare. I can’t articulate why exactly four generations of humans have performed Hamlet. But the fact that they have is a good “signal” that there is some “there” there. The play has some inherent value – otherwise it wouldn’t resonate with generation after generation. And that’s Burke’s point exactly. If past generations have embraced a given practice, you should not overturn it lightly given the limits of your reason. Just as conducting many laboratory experiments is more reliable than conducting one, so too are the opinions of past generations more reliable than the visions of the lone revolutionary.
I think this is a good explanation of Burke's point of view. And here is where he thinks the stare decisis is fo' suckas camp goes off the Burkean track:
And that brings us back to the “fo’ suckas” camp. Whatever else it is, that view is not a conservative one. It’s a radical one. And it’s radical because it tosses out the collective wisdom of the past for the abstract visions of the present. In a word, it’s “un-humble.” And in this sense, it’s very similar to the “un-humble” neocon foreign policy. Past practices are to be tossed out for the new visions. Damn the torpedoes
Now here is where I think Publius overstates his case just a bit. Now, even as he concedes, Burke's respect for tradition is not an absolute one. I'll quote myself quoting Burke:
Again, Burke was no mere reactionary. He celebrated change, for a “state without the means of some change is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished the most religiously to preserve.” (19) But while change is inevitable, change for the sake of change, and change without respect for tradition is folly. A respect for the accumulated wisdom of the ages is a necessary ingredient for the state. For “by preserving the method of nature in the conduct of the state, in what we improve we are never wholly new; in what we retain we are never wholly obsolete.” (30)
Burke acknowledges the need for change. What he dislikes, and what any true conservative certainly disdains, is radical change for the sake of change that disregards the accumulated wisdom of the ages. But does stare decisis belong in the category of accumulated wisdom? I think mouldfan actually hit upon a very good point in his post:
What I want to address is the conflation of the two concepts. In my opinion, stare decisis is neither conservative nor liberal/progressive, but rather is inherently valuable to the law in and of itself. Phrased another way, it doesn’t much matter what “theory of interpretation” one adopts because stare decisis is a separate and distinct concept deserving of its own discussion of its own merits independent of interpretive theory. Thus, so-called “originalists” ought to adhere to stare decisis and so-called “living constitutionalists” ought to as well, not because stare decisis is always beneficial or always produces the result consistent with the interpretive theory, but because of stare decisis’s inherent value.
I ultimately disagree with his value of stare decisis, but I think he is right - though for perhaps a different reason than he might think. Stare decisis is simply a legal concept. In and of itself it holds little informative value. Thus I am not sure that, from a Burkean perspective, it carries much value.

Here's the ultimate issue at hand. Stare decisis can be itself an agent of change. For example, if we concede that a decision was wrongly decided, but should be upheld because of stare decisis, then we have implicitly amended the Constitution. Roe v. Wade is everbody's favorite example of "judicial legislation," so I'll be like everyone else and use it as an example. Almost all originalists believe that Roe has no constitutional mandate whatsoever, and more than a few liberals also would concede that it was wrongly decided. But if we refuse to overturn this decision not because we believe it to be good constitutional law, but because what's done is done, then we have essentially amended the Constitution so that now there is a fundamental right to an abortion. This is in and itself a radical change.

So, if we decide to disregard stare decisis, we are engaging in change. But if we don't, we're also engaging in something of a radical change. What we've done is crafted a new method of constitutional amendment-making.

Now, I'm with mouldfan on something else. As he is uncertain of where the limits of stare decisis lie, I am uncertain as to how far back into the past we can go to change SCOTUS decisions. In the comments section of this post I mentioned that I believed that the incorporation doctrine (the SCOTUS doctrine that states that the 14th amendment means that the bill of rights apply to the states) was bunk, but it may be too far entrenched to change things. But, such thinking seems to imply that there is some sort of statute of limits, and any decision over x years of age should stand merely because of its age.

Feddie argues that when it's a close call, then we should adhere to precedent. This seems like a logical conclusion. Maybe that's the best answer.

While we're discussing Burke and stare decisis, perhaps the most pertinent Burkean doctrine to fall back on is prudence. As in almost all matters, the most important quality is caution. We should use caution when adjudicating, and we should be cautious - or prudent - when deciding when to overturn precedent. Let previous opinions be a guide when deciding constitutional cases, and consider the logic of prior generations of justices. But when it comes to deciding constitutional law, there is only one thing that matters - the document itself. And any act "repugant to the Constitution," as Marshall says, "is void."


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