Stare Decisis, Judicial Constraint, & The Linchpin Framework of Adjudication
After the Dobbs v. Jackson verdict, pundits started to question the impartiality of the Supreme Court. This rhetoric may be; propelled by ideologically driven policy preferences rather than concern for the SCOTUS being free of political influences. I highly doubt that most individuals up in arms about Dobbs would have batted an eye if the high court overturned Heller.
Regardless of the motives of the endless array of talking heads in the media, maintaining governing organizations “independent” of political interests is imperative to constraining state power. We only need to see the post-2008 policies of the Federal Reserve to see how once a governing institution compromised its operational autonomy; policies move towards disastrously interventionist initiatives. This same concern can be directed at the SCOTUS. Since the function of the court is to interpret the law, not to act as a covert extension of the legislative branch.
The one institutional constraint( the Fed’s equivalent to the dual mandate) designed to limit the latitude of the court’s decision-making capabilities is the judicial doctrine of stare decisis. Stare decisis translated from Latin means “…to stand by things decided..”; in other words, the court must adhere to past case precedence. If faithfully adhered to, this doctrinal constraint can act as a powerful check on the power of the judicial branch of government.
The question becomes does the Supreme Court have any fidelity to its own past decisions? The legal scholarship would suggest that it does not. Cameron et al. (2019) describe horizontal stare decisis as “voluntary” and “..nothing compels courts to follow precedent…”, implicating that the court has no true limitation on invalidating past case law (p. 506). Frequently, the case law laid out by the SCOTUS is expected to constrain the lower courts and not hinder the adjudication of the high court (Lax, 2007, p.591). The lack of penalty for violating past case law is problematic as this could enable judges to shape court decisions that will benefit their self-interests (Macey, 1994, p.629-630).
When armed with the potential to have implicitly unconstrained digressional authority over the application of the law, there is the possibility for abuse. In the context of manipulating the law for political ends, overturning Roe v. Wade has been a policy focal point for partisan conservatives for decades. Even if the Roe decision is flimsy, from the standpoint of judicial logic, does it make it morally sound for the court to overreach and make corrections for the erroneous past decision? It would be wise to suggest no. Legal scholar and Neo-Formalist exponent, Lawrence Solum, suggests that :
“Wholesale rejection of precedent would create another problem, which we might call doctrinal instability. Sensible formalists need not deny that some constitutional questions are close, even if one is committed to textualism and originalism” (p.194).
This lack of stability politicizes the American legal system and decreases the public’s faith in the institution (per a recent Gallup poll the public’s current approval of the SCOTUS is at historic lows).
Outside of the direct impact of overturning Roe on abortion access, what are the other downstream consequences? For one, we should consider that abortion access is an unenumerated right (not formally codified in the Constitution) that the 1973 decision protected. In other words, the court used cases supporting similar or adjacent rights to justify their ruling in Roe. This is an issue because many cases that justify the court’s ruling in Roe; could be collateral damage due to Dobbs.
For example, Griswold v. Connecticut (1965) cited in Roe (p.129); could come under fire with Roe upended. Depending on how the court bends its logic, could Griswold be next? Access to contraceptives is merely an appurtenant concern concerning abortion and does not carry the same magnitude of a moral conundrum. Since Justice Thomas has expressed the need to reconsider Griswold, contraceptive access could be in danger. In this series of events, Solum’s concerns are beginning to manifest themselves in the American legal system. All steeming one Supreme Court decision adjudicated last year.
This brings us to the concept of the Linchpin Framework of Adjudication. Any legal system that purports to adhere to the judicial doctrine of Stare Decisis is susceptible to this phenomenon. The framework is applicable when a case supported by numerous other adjacent cases is overturned, and the supporting cases cited in the nullified decision are at risk of being struck down. It is a chain reaction analogous to pulling the linchpin from a grenade; this results in the bomb detonating. By analogy, overturning the “linchpin” causes all the subordinate court decisions, propping up this single ruling; to be struck down in subsequent court sessions.
Your Car is Not Your Castle- Part I
The Fourth Amendment of the U.S. Constitution is central to our modern conception of property rights. Outside of contract law, few areas other than our right to privacy substantially address such civil libertarian concerns. The Fourth Amendment like so many other Constitution “rights” are not absolute and are subject to various exceptions and stipulations. Much how our right to free speech has limitations, the same can be said about our right to privacy. Even instances of warrantless searches of property and persons. Conceptually a warrantless search and seizure of property are condoned under a specific legal context. Effectively divorcing case law from the normative justifications for the drafting of the Fourth Amendment. The basis for the Fourth Amendment has its origins in the philosophical precepts of English Common Law. Immortalized in the words of the English jurist Sir Edward Coke “…That the house of everyone is to him as his Castle and Fortress..” implying that the home is a man’s ultimate refuge from public life. It is where he stores his personal effects and experiences the most intimate moments of his life. Arguably making securing one’s home the focal point of the property rights protected under the Fourth Amendment.
The Fourth Amendment concisely details the intended scope of security bestowed to American citizens under its protections.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Amendment IV, U.S. Constitution).
In a literal reading of the amendment, it is quite evident that its scope was enough for covering the property rights of citizens of the 18th century. With the advent of new technology, this list of protected areas of the property is wholly incomplete. Since the era of the founding, the various types of property ownership have greatly expanded to include automobiles, various forms of modern intellectual property rights, and even digitally stored information. This is likely why some jurists advocate for the prospect of a “..living Constitution..” that possesses the pliability to adapt to modern times. Despite the potential danger of illiberal innovations that may be utilized to invalidate crucial Constitutional rights. E.g.) An amendment that repeals the Second Amendment due to an increase in gun violence. Due to the stringent requirements to ratify such Amendments, the 4th Amendment has evolved primarily from case law. Primarily the rulings in Supreme Court cases, setting the tone for the modern interpretation of our right to privacy.
In certain contexts, our expectation of privacy varies. For instance, we do not have the same expectation of privacy walking down the street as we do in our bedroom. The verbatim text of the Fourth Amendment does explicitly guard Americans against warrantless searches of their home and person but leaves us in a murky situation when it comes to modern forms of ownership. Never mind cloud computing and other variants of modern data storage, but even automobiles are left out of the equation. This concern becomes particularly significant in the event of a traffic stop. However, factors relating to probable cause and the plain view doctrine need to be considered in justifying a warrantless search of a vehicle, there is another variable at play. Simply, we do not have the same expectation of privacy in our car that we do in our home. To many people, this may sound somewhat absurd and normatively there are some grounds for arguing against this point. However, from the stance of positive law, these assumptions hold.
The origin of the modern limits of the Fourth Amendment regarding vehicle searches dates back to Carroll V. United States (1925). In September 1921, Carroll met with an undercover agent to sell illegal whiskey. After Carroll left the location to obtain the whiskey his “potential” client had left. Then in early October Carroll’s vehicle was involved in a chase with a patrolling police car. Carroll was able to escape arrest. Then on December 15th of the same year, Carroll was pursued and stopped by police. During the traffic stop, the officers discovered 68 bottles of illicit whiskey tucked behind the upholstery of the car. The court held that the agents that apprehended Carroll had justifiable probable cause to search his vehicle. Since previous encounters with the suspect indicated a high likelihood that he owned alcoholic beverages.
It is easy to find such conclusions troubling. After all, we do own our cars. Shouldn’t searches of automobiles require a warrant barring exigent circumstances or the consent of the owner? Carroll happened to be the defining case that did indeed confirm that a man’s car is not his castle! It is easy to assume that the same rights that apply to a home could easily be extrapolated to a vehicle. Much like a home, a car can act as a vessel for holding personal effects. In some cases, for individuals that are homeless, a car is their house. Carroll singlehandedly defines the criteria under which an automobile differs from a stationary house regarding the expectation of privacy. The court ruled that the authorities having the suspicion that a car contains contraband is in itself justifiable for a warrantless search. Why? Since cars are mobile, they can easily leave the jurisdiction well before a warrant can be issued. This decision on the part of the court may seem overarching, however, it was not without limits. The court ruled that warrantless searches of parked automobiles would be considered unreasonable. That the search must be “…contemporaneous with the stop…” making it improper to move the vehicle offsite to search at the police officer’s “convenience ”. Subsequent cases even decades after the Carroll decision would further erode the notion that there is an expectation of privacy in one’s car. Noting that the very nature of a car being a conveyance strips away much of privacy privileged to our homes. Later cases even detailing that “…It travels public thoroughfares where both its occupants and its contents are in plain view…”.
Spooner- Argument #25 Against The U.S. Post Office
In his seminal pamphlet, The Unconstitutionality of the Laws of Congress, prohibiting Private Mails, Lysander Spooner provides twenty-seven brief arguments countering the veracity of the government-held monopoly on mail services. More specifically arguing from the perspective of Constitutional law. Utilizing the precepts of the U.S. Constitution, Spooner derives numerous thought-provoking arguments that challenged the government prohibition on private mail carriers. One of Spooner’s more novel arguments is presented in argument # 25 (p.12) of his pamphlet.
“25. If the exclusive right of carrying letters, has been granted to Congress, then it is unconstitutional for a person even to carry a single letter for a friend. And Congress is bound to punish such an act as an offense against the constitution.”
At first glance, this argument may seem thin or even frivolous. However, the implications of this refutation are much deeper than loose extrapolation. If we were to replace “letter” with any other legal commodity, such sanctions would be absurd. For example, the United States government has the exclusive right to sell, produce, and distribute bread. Making the production, sale, or transfer of bread by any private company Constitutionally barred. Any commentator with a market-oriented position on economic would be quick to decry this as “socialism”. The government attempting to monopolize and control the market for bread. If such a notion of government control of bread production seems inordinate, couldn’t the same be said of letter carrier services? The transaction costs of private companies delivering letters domestically are low. The government’s fixation with keeping private carriers out of the market back in the 1840s was puzzling.
Spooner carries the argument to its logical conclusion by extending it to the potential of congressional restrictions on gifts. He states that “… then it is unconstitutional for a person even to carry a single letter for a friend. And Congress is bound to punish such an act as an offense against the constitution. “Hand delivering a letter to a friend is only a step away from giving a gift to a friend. The only difference is the intent. Hand delivering a message is intended to disseminate information. Giving a tangible item to a friend with no expectation of direct reciprocity is a gift. As soon as you are trading tangible goods it becomes a form of barter. Does transporting a letter somehow become crass or require the need for state intervention upon exchanging money for this service? Even if we are paying someone to deliver a letter to someone else, this is a form of volunteer exchange. Just as much as giving someone a gift or opting to cut the middleman out and hand-deliver a letter to a friend. If I am not stealing the envelope, ink, and paper to compose a letter. No laws are being violated while transporting the letter, there shouldn’t be an issue. If a private company (subject to taxation) wants to provide the service of transporting that same letter for a fair price, congress should not obscure this free exchange. Especially if the company is being taxed. However, the legitimacy of taxation is a whole other stand-alone argument. If an organization pays to play and the transaction costs of such a business are low. Any functional counterargument is at best flimsy.
Outside of the Constitutional concerns of congress veering into unjustly regulating trade. Something that happens frequently in modern society as the Commerce Clause has been stretched beyond its original intent. Generating several perverse interpretations of this clause. There is a strong natural rights perspective implied in Spooner’s twenty-fifth argument. If a person composes a letter, it is their letter. As in the own the physical paper it was written on and the envelope it is sealed in. While the letter is in their possession they can do as they like with the letter. They could burn it in their fireplace. The author of the letter could elect to frame the letter. They could throw it into the recycling bin. Even better yet they could choose to give it to another person. To convey a message to the letter’s intended recipient. Instead of wasting time, energy, and resource on driving across the country to deliver the letter, they can decide to transfer this duty to a third-party. In effect, temporarily consigning possessing of the letter to the third-party carrier. In any developed market system, it would be fair to say that the consumer shouldn’t be restricted to using one carrier. By owning the letter, the consumer should not be restricted by legal barriers when choosing a vendor. It would be one thing if there was a natural monopoly (if such a thing exists) then the only other choice the customer has is to transport the letter by their efforts. When the government skews the interpretation of the Constitution to carrier barriers to entry into the market. Spooner highlights this point in his earlier arguments. For instance, argument #1:
“1. The Constitution of the United States (Art. 1. Sec. 8.) declares that II the Congress shall have the power to establish post-offices and post roads.” These words contain the whole grant, and therefore express the extent of the authority granted to Congress. They define the power, and the power is limited by the definition, the power of Congress, then, is simply” to establish post-offices and post roads,” of their own not to interfere with those established by others.” (p.5).
Spooner fully asserts that has written, Congress has the power to establish a postal service along with the parallel infrastructure to support mail delivery. Nothing more. The power is not extended to ensure that no other entrants pursue the same line of work. Nor does it explicitly state that congress is required to distribute sanctions for market entry. Not only does congress acting against private mail carriers inhibit natural property rights, but it is an overextension of the intended duty of creating a postal service. Meaning that any action taken against Spooner’s business The American Letter Mail Company was illegitimate. Did nothing more than preserve the jobs of bureaucrats and place artificial barriers on the natural cadence of market processes. The antithesis of preserving our natural rights and liberties.