Kelo and Raich: The Root of the Supreme Court Problem?

I’ve so far made four posts on the topic of Kelo V. New London, and four updates to boot. They were:
United States Constitution, 1788 – 2005: Promise Unkept
Bad Precedent
Additional Kelo Fallout Thoughts
Will the Money Be Followed?

Well, five, if you count my being inspired about a Constitutional Convention and toying with the idea of snagging the relevant domain.

This is another such post regarding, or at least inspired by, the Kelo decision. It will not be the last, or even the last today. If the topic bores you, feel free to skip these, but it really should interest galvanize everyone, the caveat provided by Justice Kennedy notwithstanding.

Anyway, I mentioned, in an IANAL (nor do I play one on TV) sort of way, the bizarre practice the Supremes have followed in allowing bad precedent to build on bad precedent, with nary a nod to the “source code” in the Constitution.

As it turns out, Skip Oliva (updated to his personal site as former blog is now squatted and spammed) just recently posted about (link updated – man it was a lot of work finding the old post with changed permalink) the problem of what is known as stare decisis; “the longstanding policy of common law courts to adhere to precedent irrespective of its merits.”

His post, at Mises Economics Blog (now archived), was inspired by Raich, which relied similarly to the later Kelo decision on bad precedent, rather than actual Constitutionality. As he told me yesterday:

Today’s Kelo decision only accentuates the need to deal with the problem of “stare decisis.”

I wanted to give this a proper post, rather than a quick link, so I delayed it until today.

This is not only not a new issue, it is downright ancient, and was in the thoughts of the founding fathers. He quotes at length from Thomas Paine, in small part:

Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up. In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for constitution and for law.

Either the doctrine of precedents is policy to keep a man in a state of ignorance, or it is a practical confession that wisdom degenerates in governments as governments increase in age, and can only hobble along by the stilts and crutches of precedents. How is it that the same persons who would proudly be thought wiser than their predecessors, appear at the same time only as the ghosts of departed wisdom? How strangely is antiquity treated! To some purposes it is spoken of as the times of darkness and ignorance, and to answer others, it is put for the light of the world.

It’s an excellent post, and an excellent point being made. It concludes, remember pre-Kelo, with respect mainly to Raich at the time:

There is also the question, under a doctrine of precedents, whether even the Supreme Court can overrule its prior decisions. A number of justices have maintained over the years that after a certain period of time, an erroneous decision must be respected by the Court to prevent a loss of public confidence in the judiciary. This was the majority’s justification for reaffirming Roe v. Wade in 1992.

When faced with a decision as constitutionally baseless as Raich, the lower courts should make every effort to expose the flaws in the Supreme Court’s reasoning and precedents. Such behavior will no doubt be condemned as “judicial activism?? by conservatives (and many leftists), but that is a false argument. True judicial activism occurs when a court exercises jurisdiction in a case without proper constitutional or statutory authority. That was the basic lesson of Marbury v. Madison. Similarly, a commitment to judicial restraint requires the federal courts to dismiss as unconstitutional any federal prosecution of a person accused of illegally growing marijuana for medicinal purposes, yesterday’s Supreme Court decision to the contrary notwithstanding.

Yet oh so applicable in either case, and beyond.

It makes sense that precedent was a known problem at the time of the Revolution. English common law was all about precedent. Whatever inspiration we may have drawn from it, this is the United States, not the United Kingdom.

Perhaps the Court forgetting who and what we are is the root of the problem.

(Repost from here.)

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