2010/01/21

Revelations in Citizens United Decision

Much is revealed in this quote of J. Roberts in the decision announced Jan. 20, 2010, in Citizens United (joined by Alito).
"To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect."
I have highlighted the references to "past mistakes", which is an acknowledgment that the Court has made mistakes in its decisions, and may have maintained it is more important to continue those past mistakes than to correct them. That is logically incompatible with the oath judges take to uphold the Constitution, and grounds for impeachment and removal.

Although Roberts is indicating that there are other mistakes that previous courts have been following contrary to original understanding of the Constitution, he is unwilling to throw open that door widely. He is as least backing off on stare decisis a little, by suggesting in essence that precedents be treated as persuasive rather than binding. That is a position that previously only Justice Thomas has been willing to put forward. That Roberts and a majority are now willing to deprecate binding stare decisis is a huge milestone, but it only points the way to a lot of unfinished business as other precedents are re-examined. That door is now open a crack, for the first time in modern judicial history.

One of the fundamental principles of the Constitution is the right to a presumption of nonauthority. Authority must always be proved from the Constitution and its historical background, not just from the most recent precedent. Generally, precedents supporting a right are correct, and most of those that support a power are not.

See this spreadsheet containing wrong precedents that remain to be corrected.

Links on Legal Theory Blog:
http://lsolum.typepad.com/legaltheory/2010/01/citizens-united-decided-major-changes-in-campaign-finace-laws.html

This decision essentially means campaigns can now accept donations from corporations.

See How Stare Decisis Subverts the Law.

See my Draft Amendments that include an amendment to forbid such use of stare decisis.

2010/01/17

Napolitano not quite accurate

The videos of Andrew Napolitano contain several errors of constitutional construction and of history. Here are a few that stood out:

1. It is inaccurate to characterize Alexander Hamilton and John Adams as not believing that rights recognized in the Constitution derived from nature or God. They may have disagreed with Jefferson, Madison and others of their school of thought concerning how to interpret the powers delegated to Congress, but not on the fundamentals of natural or social rights.

2. Contrary to Napolitano, the powers delegated to Congress are not limited to the 17 in Article I Section 8. There are other powers scattered throughout the Constitution.

3. It is not accurate to say that the President must enforce all the laws and must spend all the money Congress votes. First, it is his duty not to do so for statutes or appropriations that are unconstitutional. Second, he has some discretion concerning enforcement, because it is generally not possible to strictly enforce everything, and it is generally necessary to prioritize enforcement actions.

4. It is also not quite accurate to say that any federal court may order the President to do something. As it was pointed out in Marbury v. Madison, the principle of the separation of powers does not permit federal courts to direct the actions of constitutionally elected officials, in that they have no power to enforce such orders. They do, however, have authority to issue enforceable orders to employees and contractors under the supervision of those constitutional officers. Their power over the president is limited to power over those who work under his supervision.

5. Napolitano incorrectly accepts that the "cases and controversies" clause is a limitation of the jurisdiction of the courts to cases in which a party has particular injury to himself. That is the doctrine of "standing" first put forth in Frothingham v. Mellon, 262 U.S. 447 (1923), which removed a key remedy, presumed by the Framers when they wrote the Constitution, by a judiciary trying to evade its duty to decide constitutional issues. This is discussed in The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

6. Napolitano is incorrect that the federal government was created by the states. It was created by the people voting by state. They were not representing the state as a state when they did so, and were also virtually representing the people of the non-state territories. It is a subtle but important distinction that needs to be understood and maintained.

Although I generally commend Napolitano for speaking out on constitutional violations, his understanding of constitutional principles is somewhat distorted by his training as a lawyer. He has written some good books which bring out some of the problems, but which are sadly lacking in the kinds of structural and procedural reforms that are needed to solve them. Most of his suggestions are for officials to behave better. That won't work. Those officials misbehave because of the incentive system within which they operate, and to change the incentive system we have to make structural and procedural changes.

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