In response to my post asking what Catholic social thought has to say about the issue of following judicial precedent, reader (and former student of mine) Pat Shrake writes:
I tend to be in the Michael Paulsen camp on the very limited use of stare decisis in determining constitutional matters. Although I'm sure he has articulated it far better than I can, my main reason for this is my understanding that the court's role in interpreting the constitution is limited to the particular case (or controversy) before the court. . . .
What I was surprised to learn is that this appears to be the approach that the Catholic Church takes in canon law matters. That is, the decision of a particular canon law case does not decide the interpretation of the canon for future cases. Which leads me to an unresearched hypothesis of why this is so.
I hypothesize that the reason for both approaches is that the law in both cases is NOT the interpretation given it by the judge. Rather, in both cases, the law is written down (either as a Constitution or a canon) and then applied by the judge to the particular facts. The judge does not have the role of law giver in either circumstance. Or, more precisely, the judge only gives the law of the case.
In contrast, in the common law, the judge is either accepted as the law giver or, at the very least, the law "revealer"-when he or she writes down and/or pronounces what the law is. As many of the issues decided upon by the common law are an attempt to balance one interest against another, this method of determining "the law" fits within the broad variations of ordering society acceptable under Catholic social thinking.
So, in summary, I'm suggesting that one of the key insights that Catholic thinking and practice can give is that defining WHO the law giver is becomes vitally important. If the law giver has spoken (via the canon or Constitution) then the law interpreter (the judge) has a very limited role and only decides a particular case-with that decision having only a persuasive impact on the next judge. If the law giver IS the judge, then the judge's view of the law obviously becomes very important.
This is a very interesting and insightful point, and probably has a lot of truth in it. But a couple of quick thoughts in response:
1. It doesn't seem to me that respect for precedent is irreconcilable with respect for a written Constitution or code whose force derives from an act of the people. Even though Henry Monaghan argued that we essentially have a "constitutional common law," I don't think that one needs to turn constitutional law into common law in order to affirm the relevance of precedent. Stare decisis is, of course, a presumption that can be overcome. It could rest on the idea -- compatible with a written Constitution, especially one whose phrasing (like ours) is often broad -- that often the written words do not clearly dictate the result, and that in such cases a backup principle of following what previous courts have done can be useful in guiding current courts, even though at some point a precedent will be so inconsistent with the true meaning of the provision (revealed by text, original understanding, etc.) that it must be overturned. Hamilton's Federalist 78 certainly assumes a written Constitution as the subject of judicial review, but it also says that the judges engaging in such review will be bound by "strict precedents" that will constrain their imposition of their own will. It seems to me it's unlikely that the framing generation thought a defeasible principle of stare decisis was inconsistent with a written Constitution reflecting a supermajority decision of the people.
As for the Court's authority being limited to the particular case before it, that likewise is consistent with respect for precedent. Stare decisis is not res judicata; the prima facie duty to follow precedent is not a matter of the binding, authoritative force of a previous decision. Rather it follows from other sources, such as a duty to be consistent in rulings (not deciding cases under the same provision under entirely different principles, without a good reason for doing so) and a concern for stability in the law.
2. I'm very interested in the canon-law point Pat makes, and I'd love to hear from canon lawyers about it. Again, however, even if it is the practice that decisions on canon law (like those on other codes) advert directly back to the Code rather than to precedent, I'm not sure that this is logically compelled by the nature of a written text (i.e. a non-common-law situation). Again, the U.S. practice under the Constitution has combined the two: a written Constitution together with substantial (though defeasible) respect for judicial interpretations of it. And if we're going to look at written texts in the Catholic tradition, what about the Bible? That's a statement of a lawgiver, for sure (at least the orthodox view would say) -- which the Church is not modifying but merely interpreting -- and yet in the Catholic tradition interpretation of it is substantially committed to an ongoing community reflected in the magisterium's teachings. I know that, as I said before, the Church understands itself to have the Holy Spirit -- but doesn't the principle of giving respect to tradition in interpreting a text cut more broadly than that? Isn't part of the Church's approach to the Bible that it is a complicated text (as we could also say of the Constitution), and therefore its interpretation over time by those with a special vocation to interpret ought to be quite relevant. Remember that Mike Paulsen is, in the words of Sandy Levinson in Constitutional Faith, a "constitutional Protestant" (as well as a real one!) rather than a "constitutional Catholic."
I threw a lot of themes quickly into those three paragraphs, which may need disentangling (and in some cases correcting). I'd be interested in hearing from others.
Tom
As I've blogged before (here and here), the Uniao do Vegetal case -- on the application of the Religious Freedom Restoration Act (RFRA) to the sacramental use of tea with a small amount of hallucionogenic substance in it -- raises vital issues across the board about the scope of religious freedom in America, and what kind and quantum of evidence the government must provide to justify serious restrictions on religious freedom.
The case was argued in the Supreme Court yesterday, and the argument appeared to go very well for the religious group and badly for the federal government (HT: SCOTUS Blog):
Perhaps the most telling development of the argument was that Justice Antonin Scalia displayed almost no sympathy for the government’s position. Noting that Congress has created an exception to drug policy for Indian tribes’ ritual use of peyote, Scalia told [Deputy SG Edwin] Kneedler: “This demonstrates you can make an exception without the sky falling.” Kneedler did not do well in trying to explain away the peyote exception as limited to Congress' special concern for Indian tribes. Scalia, of course, was the author of the Court’s 1990 decision (Employment Division v. Smith) allowing states to ban the tribal use of peyote – a decision that Congress essentially overturned in passing RFRA, and enacting a separate exception for Indians’ use of peyote.
If indeed the justices are overhwlemingly in favor of protecting the group under RFRA, then the view of Justice O'Connor versus Judge Alito won't matter, and the case won't need to be held over until a new justice is seated.
I have an article on the case in the November 1 issue of The Christian Century. It's at your local newsstand, but despite the date, it's not posted online yet; I'll provide a link when I can. My article describes the background of the case and the importance of RFRA to religious freedom in America. It also takes on some of the arguments against religious accommodation made by Marci Hamilton, whose position was discussed here at MOJ a while back.
Tom
Tuesday, November 1, 2005
The administration continues to push (see here and here) to weaken -- and threatens to veto -- the McCain Amendment that forbids the use of "cruel, inhuman or degrading treatment or punishment" against anyone in U.S. government custody anywhere. Is there any argument that the administration's position can be squared with Catholic, or more generally Christian, moral thought? Can defenders of the administration make any argument -- as they did concerning the invasion of Iraq -- that this is a question of prudence rather than intrinsic evil?
Tom
Imagine if I had been Luther and Rick had been Pope Leo X (or the other way around). We would have ended up getting together for beers somewhere in Switzerland, and the whole Reformation would have had to be called off.
I appreciate Rick's comments about fairness and moderation, because he consistently displays those qualities too (even when he shows up on National Review Online!). I must admit, though, that then another voice keeps chiding me that it's only the wild, anti-moderate people -- of whom Luther surely was a prime specimen -- who change the world.
Tom
On SSRN, Robin F. Wilson of the University of Maryland Law School posts two interesting looking family-law articles:
"Evaluating Marriage: Does Marriage Matter to the Nurturing of Children?"
This article evaluates the extent to which newer, more carefully constructed studies can assist us in isolating the impact on a child's well-being of living in a marital home. Part I describes the limitations of earlier studies of family structure. Part II examines a pair of studies published in 2003 that compare children's outcomes and parental investments in children in families that contain biological, married parents with those containing biological, unmarried parents. These studies conclude that "marriage per se confers advantage in terms of" how children thrive and to the extent to which parents are willing to invest in children. Part III evaluates the degree of reliance we should place on these newer studies. . . . [It] concludes that perceptions of enduringness may shape not only relationships between the adults, but may also frame the adults' relationships to their children.
"Undeserved Trust: Reflections on the American Law Institute's Treatment of De Facto Parents."
In its PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION, the American Law Institute (ALI) proposes sweeping changes in the legal conception of parenthood. One such change would confer custody and visitation rights on a live-in partner of a legal parent who shared caretaking responsibility for a child for two or more years. . . .
Although the ALI is engaged in an admirable undertaking - to provide children with enduring contact with, in some cases, the only father [a] child ha[d] known - the drafters assume, without substantiation, that continuing contact between a child and the former live-in partner of the child's parent is an unadulterated good. However, by designating more and more adults as parents to whom custodial responsibility may be given, the ALI glosses over significant differences in the protective capacities of legal parents and other caretakers, as well as their desires to exploit children. Although some children may be made better off by the continued presence of de facto parents, their gain comes at a cost. Other children are likely to experience punishing physical abuse, sexual abuse or neglect, hastened in part by the fact that such contact occurs outside the protective presence of the child's legal parent.
Tom
