Is Stare Decisis In the Constitution?

Orin Kerr writes in defense of stare decisis and I agree with his argument but it brought me to the question I present in the title.

As Al Franken might say, 'are the words stare decisis in the Constitution?' The answer is no. But a common law Judicial Branch IS in the Constitution. I would argue that the Constitution did indeed envision the principle of stare decisis. Which puts me in my mind of this article arguing that Justice Souter was one of our great common law Supreme Court Justices.

This is an Open Thread.

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    This guy should be out of... (none / 0) (#1)
    by kdog on Mon Aug 17, 2009 at 03:26:23 PM EST
    his cage yesterday...f*ck the red tape and get it done NY.  

    Kudos to the NY Daily News for getting the word out.

    Today's news (none / 0) (#2)
    by Steve M on Mon Aug 17, 2009 at 03:29:35 PM EST
    New filing from the government in the infamous DOMA case where they got so much grief for the brief they filed a couple months ago.

    Much more nuanced and politically savvy filing this time.  They're still defending the constitutionality of DOMA, but they explicitly say "this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal."  And they spell out their procedural reasons for defending the constitutionality of the statute instead of just leaving everyone to speculate.

    They encourage the court to decide the case on the narrow grounds of standing rather than getting into the constitutional issues, something they should have focused on the first time around.

    And they spell out the Administration's disagreement with the anti-gay marriage groups who have intervened in this case to also defend DOMA:

    Unlike the intervenors here, the government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion - which, of course, is the prevailing law - because "the sterile and the elderly are allowed to marry." For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality.

    Obviously they realize they blew it the first time around.  Kudos for trying to get it right, and credit to the gadflies who gave them such a hard time in the first instance.

    Of course, the Obama (none / 0) (#5)
    by dk on Mon Aug 17, 2009 at 03:36:23 PM EST
    administration still takes the view that there is a rational basis for the notion that gays and lesbians should continue to be second class citizens in this country.  And what is that reason, you ask?  One that certainly would make Jeff Sessions and all of BTD's other favorite senators proud.  You got it...state's rights!

    Courts have held that challenges to DOMA are subject to rational basis review. Under that deferential standard of review, this Court should find that Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo regarding the distribution of federal benefits in the face of serious and fluid policy differences in and among the states. That there is now a debate taking place in this country about same-sex marriage does not make Congress's belief in this regard any less rational. Basic federalism principles allowed Congress in 1996, and allow Congress now, to take this uniform approach based on a traditional  definition of marriage that all 50 states recognize while the states grapple with the emerging debate over same-sex marriage. Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

    Their rational basis argument is weak IMO (none / 0) (#7)
    by andgarden on Mon Aug 17, 2009 at 03:40:11 PM EST
    Intentionally so, in my estimation. Rational basis review usually results in the law being upheld, but that is not uniformly so, especially with anti-gay laws.

    That's true. (5.00 / 1) (#11)
    by dk on Mon Aug 17, 2009 at 03:46:44 PM EST
    I just thought it was important to point out that the brief still does make the rational basis argument.

    Your best evidence (none / 0) (#23)
    by Steve M on Mon Aug 17, 2009 at 04:07:02 PM EST
    that the DOJ has gotten considerably more gay-friendly in the last 2 months is their calculated tweak of Justice Scalia in the excerpt I quoted above.  I know I'd enjoy writing that paragraph.

    If only because Scalia said (none / 0) (#28)
    by andgarden on Mon Aug 17, 2009 at 04:11:08 PM EST
    what Kennedy would not. Isn't there some aphorism about the danger of pointing out a slippery slope?

    Gay-friendly is a bit of a (none / 0) (#34)
    by dk on Mon Aug 17, 2009 at 04:21:06 PM EST
    stretch, IMO.  I'd classify it as an attempt to be politically savvy.

    I see (none / 0) (#40)
    by Steve M on Mon Aug 17, 2009 at 04:30:58 PM EST
    that my attempts to write with tongue in cheek have failed yet again.

    Much improved (none / 0) (#6)
    by andgarden on Mon Aug 17, 2009 at 03:38:33 PM EST
    Though I would still say that a) the policy of defending laws an Administration disagrees with is more unevenly observed than they claim; and b) given that fact, they should be pointing to the line of cases that say that marriage is a fundamental right, triggering strict scrutiny.

    How many exceptions to that policy (none / 0) (#9)
    by Steve M on Mon Aug 17, 2009 at 03:42:03 PM EST
    can you identify?

    Not the right question (none / 0) (#12)
    by andgarden on Mon Aug 17, 2009 at 03:46:49 PM EST
    The right question is, how different is this example from the other instances. It's a question that I haven't researched.

    Hey Steve M (none / 0) (#13)
    by Big Tent Democrat on Mon Aug 17, 2009 at 03:52:39 PM EST
    A lawyer is born before our eyes.

    Talking like a judge though.

    When you are in front of a judge andgarden, "not the right question" can never be your answer to the judge.


    heh (none / 0) (#17)
    by andgarden on Mon Aug 17, 2009 at 03:55:47 PM EST
    Understood. But if I were before a judge, I'd like to think that I'd actually be prepared! (Incidentally, my answer for Steve's question or my question might not really be any different).

    Well (none / 0) (#14)
    by Steve M on Mon Aug 17, 2009 at 03:52:45 PM EST
    my point was that examples seem to come along about once per administration, meaning it's not a decision that gets made lightly.

    As for the nature of the exceptions to the general rule, I have not found a better summation than Marty Lederman's:

    There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn't really an "exception" to the "rule" as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute's defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ's view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the "must-carry" provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.)

    If the President can decline to defend (none / 0) (#15)
    by andgarden on Mon Aug 17, 2009 at 03:55:00 PM EST
    fricken must carry, he can decline to defend DOMA.

    Of course he can (none / 0) (#19)
    by Steve M on Mon Aug 17, 2009 at 04:01:35 PM EST
    Nobody is contending that the President lacks the power to make an exception.

    Then the whole case for not making one here (none / 0) (#22)
    by andgarden on Mon Aug 17, 2009 at 04:06:38 PM EST
    is that it's pretty rare to. Is that really good enough for you? To me it's clearly not.

    Really? (none / 0) (#29)
    by Steve M on Mon Aug 17, 2009 at 04:11:37 PM EST
    That's the WHOLE case?

    How would you justify (none / 0) (#32)
    by andgarden on Mon Aug 17, 2009 at 04:13:35 PM EST
    not defending must carry in a way that wouldn't also justify not defending DOMA? There is no principled argument for such a distinction.

    Um (none / 0) (#33)
    by Steve M on Mon Aug 17, 2009 at 04:20:09 PM EST
    I do not have to accept that a single deviation by a Republican administration from a longstanding tradition now sets a new, much lower bar for every subsequent decision.

    Ahem (none / 0) (#35)
    by andgarden on Mon Aug 17, 2009 at 04:24:54 PM EST
    Steve M:

    It is the Democratic way to fret over questions of process.  In my mind it's simply a way to rationalize bad outcomes.
    [. . .]
    It is fine to talk about which tactics will and will not work.  It is not fine to tie your own hands by making up rules that only apply to your own side and amount to nothing but sour grapes.



    Right (none / 0) (#41)
    by Steve M on Mon Aug 17, 2009 at 04:32:17 PM EST
    Except this is not just some made-up rationalization, but an actual longstanding practice of the DOJ.

    Except when it isn't (none / 0) (#45)
    by andgarden on Mon Aug 17, 2009 at 04:36:01 PM EST
    Okay, talex (none / 0) (#46)
    by Steve M on Mon Aug 17, 2009 at 04:39:38 PM EST
    heh (none / 0) (#51)
    by andgarden on Mon Aug 17, 2009 at 04:42:52 PM EST
    Not quite. Talex would be insulting you personally!

    Tarantino's top ... (none / 0) (#3)
    by Robot Porter on Mon Aug 17, 2009 at 03:30:35 PM EST
    20 movies (since he started directing):

    Video of him listing the films here.

    Oy. Tarantino. (none / 0) (#10)
    by shoephone on Mon Aug 17, 2009 at 03:45:45 PM EST
    Having to sit through the 6-1/2 minutes it took him to tell us his favorites was painful. Not too good a speaker, ol' QT.

    But his choices are truly awful. I could only agree with "The Insider".

    Um... seriously, Quentin?


    "Team America"???



    Saw him on the CBS morning show (none / 0) (#16)
    by ruffian on Mon Aug 17, 2009 at 03:55:17 PM EST
    yesterday. Not a very impressive interview. I was surprised to learn he has only directed 7 movies.

    I like QT ... (none / 0) (#42)
    by Robot Porter on Mon Aug 17, 2009 at 04:33:09 PM EST
    we can all quibble over others favorite lists, but all the films on his list are worth seeing.

    I'd especially recommend the three Korean films on his list:  Joint Security Area, The Host and Memories of Murder.

    And though I wouldn't put Battle Royale at the top, it's a great movie.  And I can understand why he wished he made it.

    Tarantino is a fan of genre cinema so his list is weighted in that direction.  

    His list wouldn't be mine.  But it's a pretty solid list, imo.


    It's okay, Robot Porter. (5.00 / 1) (#48)
    by shoephone on Mon Aug 17, 2009 at 04:41:15 PM EST
    I still respect you.



    saw that list this morning (5.00 / 1) (#49)
    by Capt Howdy on Mon Aug 17, 2009 at 04:42:06 PM EST
    its interesting.

    Dogville?  I sort of thought that was an interesting experiment but a long sit.


    although I am really looking forward (5.00 / 1) (#55)
    by Capt Howdy on Mon Aug 17, 2009 at 04:49:48 PM EST
    to seeing Antichrist.  which is the same director.

    If you are going to do these postings (none / 0) (#4)
    by Militarytracy on Mon Aug 17, 2009 at 03:35:08 PM EST
    about Al's take and your take, I'm going to have to google so much more, and Wiki......

    Thanks for pointing to that post on Souter (none / 0) (#8)
    by andgarden on Mon Aug 17, 2009 at 03:41:52 PM EST
    I actually used his concurrence in Glucksberg as an example to a question on my con law exam last month, discussing how I would propose to interpret the Constitution.

    well my adoption was a smashing success (none / 0) (#18)
    by Capt Howdy on Mon Aug 17, 2009 at 03:59:43 PM EST
    at least so far.  she is a total sweetheart and she a Ghost are quickly becoming best friends.

    and they make a pretty cute couple.  so much so I almost (but not quite) wish they were not both fixed.

    they are both at the beauty saloon as we speak so pics to come.

    Oh so we are going to see (none / 0) (#65)
    by MO Blue on Mon Aug 17, 2009 at 05:04:51 PM EST
    Glamor Shots of Ghost and Daisy.

    What happened with Papa Husky? Did your coworker adopt him?


    no (none / 0) (#78)
    by Capt Howdy on Tue Aug 18, 2009 at 08:39:06 AM EST
    someone else did before he had a chance.

    Congrats!!! (none / 0) (#67)
    by nycstray on Mon Aug 17, 2009 at 05:08:11 PM EST
    looking forward to the pics.

    Nice... (none / 0) (#76)
    by kdog on Mon Aug 17, 2009 at 06:37:53 PM EST
    my uncle brought hiw two rat terriers (female) up from Texas to the big McArab tribe family reunion this weekend, and my sister's boxer (unfixed) went ga-ga chasing those tails...but the two rats honor was saved by my uncle.  Watching him prying the boxer off one of 'em after untold jack-n-cokes brought some of the biggest laughs of the weekend.

    My tribe rules...not a bad word or quarrel all weekend, not many extended families can say that.  Not bad for a bunch of McArab degenerates:)


    you are lucky (none / 0) (#79)
    by Capt Howdy on Tue Aug 18, 2009 at 08:39:55 AM EST
    my extended is not so brotherly.

    Holmes (none / 0) (#20)
    by Capt Howdy on Mon Aug 17, 2009 at 04:01:58 PM EST
    is sounding better and better.

    Brad Pitt has joined the cast of 'Sherlock Holmes' as the detectives greatest nemesis, Professor Moriarty. According to a newspaper Warner Bros. were not happy that the good professor was left out of the film so they gave director Guy Ritchie an extra 10 days to film the scenes with Brad Pitt.

        "It's a huge coup to have Brad joining the cast. He has worked for Guy before and said if he could, he would do anything to help out" a source told the mirror.

        "It was an oversight in the film not to make a bigger deal about Moriarty. He is mentioned as Holmes' arch enemy, but the bosses wanted Guy to make more of him."

        "Jude Law [who plays Dr Watson] and Robert Downey Jr [Holmes] have already shot their scenes. But now that 10 extra days have been added to shoot the new ones, they may be called back for a day or two."

    Sounds good (none / 0) (#21)
    by andgarden on Mon Aug 17, 2009 at 04:05:08 PM EST
    he was on Mahers show (none / 0) (#25)
    by Capt Howdy on Mon Aug 17, 2009 at 04:08:51 PM EST
    this weekend.  he said some very intelligent things.
    I heard he was going to run for mayor of NO.

    Brad Pitt, are you running for Mayor of New Orleans? "Yeah, I'm running on the gay marriage, no religion, legalization and taxation of marijuana platform. I have no chance."

    Starting rumors? (none / 0) (#59)
    by Inspector Gadget on Mon Aug 17, 2009 at 05:00:19 PM EST
    He said on the morning show interview the same thing, but he adamently pointed out that governing is not where his talents lie. He's doing more good from where he is now.

    Carville (none / 0) (#24)
    by lilburro on Mon Aug 17, 2009 at 04:07:12 PM EST
    wants a filibuster of the health care bill.


    "What about this?," Carville said Sunday on CNN's State of the Union, "Suppose they pass a House bill that can get 56 Senate Democrats." Then, Carville suggested, instead of using reconciliation, a special budgetary maneuver in Senate procedure that frustrate GOP attempts to mount a filibuster, Democrats should call for a vote. "And make [Republicans] filibuster it. But the old kinda way is that they filibuster it and make'em go three weeks and all night and [Democrats] will be there the whole time.

    "Then, you say, `They're the people that stopped it. We had a majority of Democrats. We had a good bill. They stopped it.'"

    Interesting strategy.

    Not only that (none / 0) (#26)
    by CST on Mon Aug 17, 2009 at 04:10:14 PM EST
    wouldn't some Dems have to join that filibuster?

    That would go over well I'm sure.


    I think the point is (none / 0) (#30)
    by andgarden on Mon Aug 17, 2009 at 04:11:57 PM EST
    that if the bill ever got to that point, Harry Reid and Rahm would find the votes for cloture.

    That's the whole purpose of getting a public plan to conference.


    if I thought the democrats could (none / 0) (#31)
    by Capt Howdy on Mon Aug 17, 2009 at 04:12:18 PM EST
    organize a tinkle at a beer bust this would sound like a good idea.

    Whoa Dude... (none / 0) (#27)
    by desertswine on Mon Aug 17, 2009 at 04:10:37 PM EST
    Don't say slathered... (none / 0) (#75)
    by kdog on Mon Aug 17, 2009 at 06:28:51 PM EST
    you'll have cokeheads across the country grinding up dollar bills in hopes of getting a discount high...tainted with trace amounts, if you please d'wine:)

    And we should all hope beyond hope the international traffickers don't switch to the Euro as the black market currency of choice, our dollar/economy can't take anymore hits.


    Is a (none / 0) (#36)
    by Bemused on Mon Aug 17, 2009 at 04:25:56 PM EST
    common law judicial branch found in Article III? Or, just a judicial branch that we know  turned to to familiar common law principles and precepts when it began operating?

      If the early jurists had decided they preferred civil law or some other system would the constitution have stood in the way of implementation? (and who would have made  that ruling? The President? Congress?  Would judicial review be incompatible with a civil law or some other court system?

      I know some (not sure how many) of the state constitutions expressly recognize the common law system but the federal constitution does not seem to forbid deviation or substitution.

       As for stare decisis, it's a guiding principle and important as such but it's not a rule or a mandate and it's  not the only guiding principle and sometimes should not be the most important one.


    English common law (none / 0) (#38)
    by Big Tent Democrat on Mon Aug 17, 2009 at 04:29:41 PM EST
    is substantively in the Constitution.

    Hard to imagine an American court system abandoning the common law system already in place.

    Civil law in the federal courts and common law in the state courts?  Nah.

    Would the Constitution have prohibited it? I think so. but who would win that argument with the Supreme Court? It's funny that conservatives today who rail about judicial activism would be siding with the French on this.


    I'm not a legal historian (none / 0) (#44)
    by andgarden on Mon Aug 17, 2009 at 04:35:09 PM EST
    but in 1789 wasn't there essentially English law, and then a patchwork of codes and arbitrary judgement? The Napoleonic code was a great innovation--in 1805.

    The framers thought of themselves first as Englishmen (well, before they gave up on the King), and it is pretty inconceivable that they intended anything other than a common law system.


    Precisely what we had (none / 0) (#47)
    by Big Tent Democrat on Mon Aug 17, 2009 at 04:39:49 PM EST
    The English court system.

    I am reminded (none / 0) (#52)
    by Steve M on Mon Aug 17, 2009 at 04:46:16 PM EST
    of Alberto Gonzales' testimony that habeas corpus is not in the Constitution.  The point is that everyone understood we would be carrying the English system forward.

    That said, the Judiciary Act of 1789 was basically a part of the Constitution as far as I'm concerned.


    Did he really say that? (none / 0) (#56)
    by andgarden on Mon Aug 17, 2009 at 04:49:56 PM EST
    Because, um, it is in the Constitution.

    He should read (none / 0) (#57)
    by Bemused on Mon Aug 17, 2009 at 04:53:58 PM EST
    article I, section 8, which sread in part:

    The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

       Now it might require reference to English common law to define habeas corpus as it existed in 1789, and its parameters, but it's in my copy of the constitution.


    Right (none / 0) (#63)
    by Steve M on Mon Aug 17, 2009 at 05:02:32 PM EST
    what he said was that the Constitution didn't create an express entitlement to the writ.  His tortured logic, similar to the argument you are making here, was that even though the Constitution says the writ can't be suspended, nothing in the Constitution required Congress to create the writ in the first place.

    as an insult, (none / 0) (#70)
    by Bemused on Mon Aug 17, 2009 at 05:27:56 PM EST
     that's pretty good, but you will have to explain how my logic is similar to his.

      I'm simply saying the Constitution did not mandate that our court system be structured as it is, follow the English common law tradition as it does, or have developed any of the substantive or procedural law that it has. I'm not saying it didn't happen or that it wasn't the desire of the founders (and a whole big bunch of other people). I'm saying the constitution can not be relied upon to say it has to be this way unless the constitution is amended.


    In both cases (none / 0) (#73)
    by Steve M on Mon Aug 17, 2009 at 05:55:33 PM EST
    the point is that yes, a comet could have struck the earth in between the ratification of the Constitution and the enactment of the Judiciary Act, or perhaps the Tories could have won the election and given the country back to Britain, but in the real world the same people who wrote the Constitution knew that yes, there would be a writ of habeas corpus, and yes, our courts would be following a common-law model.

    If you think you have a great point here, you should think Alberto Gonzales had a great point too.  That's all I'm saying.  I think it's pretty clear that our country was deeply committed to a common-law system in 1789, and that you can't interpret the Constitution in a manner that's completely divorced from that understanding.


    and (none / 0) (#58)
    by Bemused on Mon Aug 17, 2009 at 04:54:57 PM EST
     it's rather unfathomable to say the Judiciary Act is part of the Constitution.

    Steve M's point (none / 0) (#61)
    by Big Tent Democrat on Mon Aug 17, 2009 at 05:01:02 PM EST
    is that like say the Northwest Ordinance Act, the Judiciary Act is valuable for understanding the Framer's original intent, not that it is literally a part of the Constitution.

    I'll agree with that (none / 0) (#64)
    by Bemused on Mon Aug 17, 2009 at 05:04:47 PM EST
       but the Constitution did not require the Judiciary Act be as enacted or that our courts follow English common law.  

    This was (none / 0) (#66)
    by Steve M on Mon Aug 17, 2009 at 05:07:12 PM EST
    Lincoln's mode of constitutional analysis in the Cooper Union speech, of course.

    Lincoln (none / 0) (#71)
    by Bemused on Mon Aug 17, 2009 at 05:34:37 PM EST

    "The question of federal control of slavery in the territories, seems not to have been directly before the Convention which framed the original Constitution; and hence it is not recorded that the "thirty-nine," or any of them, while engaged on that instrument, expressed any opinion on that precise question.

    In 1789, by the first Congress which sat under the Constitution, an act was passed to enforce the Ordinance of '87, including the prohibition of slavery in the Northwestern Territory. The bill for this act was reported by one of the "thirty-nine," Thomas Fitzsimmons, then a member of the House of Representatives from Pennsylvania. It went through all its stages without a word of opposition, and finally passed both branches without yeas and nays, which is equivalent to a unanimous passage. In this Congress there were sixteen of the thirty-nine fathers who framed the original Constitution. They were John Langdon, Nicholas Gilman, Wm. S. Johnson, Roger Sherman, Robert Morris, Thos. Fitzsimmons, William Few, Abraham Baldwin, Rufus King, William Paterson, George Clymer, Richard Bassett, George Read, Pierce Butler, Daniel Carroll, James Madison.

    This shows that, in their understanding, no line dividing local from federal authority, nor anything in the Constitution, properly forbade Congress to prohibit slavery in the federal territory; else both their fidelity to correct principle, and their oath to support the Constitution, would have constrained them to oppose the prohibition.


    does that not suppoert my argument (none / 0) (#72)
    by Bemused on Mon Aug 17, 2009 at 05:44:04 PM EST
      Is Lincoln not, in fact, saying, the Constitution did not "for[bid] Congress to prohibit slavery" in the territory because it did not directly address the issue?

      Isn't that similar to my saying the constitution did not forbid a judicial system founded on something other than English common law?

      Obviously, I'm not saying Congress was forbidden from passing the Judiciary Act as enacted. I'm saying it allowed for something different.

       I'm put in the mind of some government clerk who asked why a certain procedure is followed responds "because it's always been done that way." That's often true, but it does not mean it has to be done that way. I also think that "imagining" how things could have been different can have value and help develop ideas that improve the existing system even if it remains fundamentally the same in most respects. Until we achieve perfection pondering possible changes is never a waste of time.



    No (none / 0) (#74)
    by Steve M on Mon Aug 17, 2009 at 05:56:35 PM EST
    If Lincoln had been making a textual argument, the speech would have been much shorter.  Instead, he was making an argument about the intent of the Founders that went beyond the text of the Constitution to look at how the Founders behaved during the First Congress.

    how so? (none / 0) (#77)
    by Bemused on Tue Aug 18, 2009 at 08:01:59 AM EST
      You are losing me here as I really can't begin to follow your argument. Here is more from the speech:

    What is the frame of government under which we live?

    The answer must be: "The Constitution of the United States." That Constitution consists of the original, framed in 1787, (and under which the present government first went into operation,) and twelve subsequently framed amendments, the first ten of which were framed in 1789.

    Who were our fathers that framed the Constitution? I suppose the "thirty-nine" who signed the original instrument may be fairly called our fathers who framed that part of the present Government. It is almost exactly true to say they framed it, and it is altogether true to say they fairly represented the opinion and sentiment of the whole nation at that time. Their names, being familiar to nearly all, and accessible to quite all, need not now be repeated.

    I take these "thirty-nine," for the present, as being "our fathers who framed the Government under which we live."

    What is the question which, according to the text, those fathers understood "just as well, and even better than we do now?"

    It is this: Does the proper division of local from federal authority, or anything in the Constitution, forbid our Federal Government to control as to slavery in our Federal Territories?

    Upon this, Senator Douglas holds the affirmative, and Republicans the negative. This affirmation and denial form an issue; and this issue - this question - is precisely what the text declares our fathers understood "better than we."

      Note Lincoln is  arguing the TEXT of the constitution does not forbid Congress from prohibiting slavery in the territories. But, he is not arguing it forbids Congress from permitting slavery in the territories. He is only arguing that it is wrong to basse arguments for slavery in the territories on a constitutional limitation on congressional power to ban it.

      His analysis of "the 39" is intended only to show he believed the founders intended for the question of slavery in the territories (and by implication staes) to be within congressional reach.

       He obviously was aware of the KansasNebraska Act and the Mssori Compromise and makes no even indirect claim they were illegitmate assertions of congressional authority.

       It seems abundantly-- indeed inarguably-- clear that Lincoln is  asserting that the Constiutution allows Congress to legislate on the subject of slavery whether that legislation maintains, expands, cotracts or forbids it. He is only saying it was the 39s intent for that to be so.

      Back to the question of the judiciary, how does that differ from my argument that the intent of the founders was for Congress to establish the inferior courts (as expressly provided) but by not expressly setting forth limitations on Cngress's powers or mandating how the substantive or prodcedural law would be developed the constitution left similar room for different approaches to have been enacted or to evolve?

      Now, obvously, I don't think the question of the courts and the law was near as controversial and divisive as was the issue of slavery and it's unsurprising we CHOSE the least disruptive and most familiar path, but I think it is simply wrong to ascribe that path to the Constituion.


    Sure there examples (none / 0) (#50)
    by Bemused on Mon Aug 17, 2009 at 04:42:50 PM EST
     of the constitution "codifying" certain common law principles (and rejecting others) but at that point it's not common or "judge made" law anymore.

      It's obviously difficult, especially  220 years later, to imagine a different course, but i'm only asking if the constitituiotn would havce been an impediment had the early jurists decided to embark upon one.

       Remember that at that time the federal judiciary wasn't dealing near as much wiith laws and issues that involved matters for which a body of common law existed as it does today. It didn't happen and would have been radical but I don't think the constitution demands adherence to the Englis common law tradition -- and as we have both pointed out, who would have stopped the courts from discarding it? Congress could pass statutes but who would decide they were constitutional and force the court to follow a law dictating that courts apply a common law which at the time was even more opaque and less settled than today.

       States not only were the primary forum for such disputes but legislatures in many of them took action to stop them from relying on certain common law rules. (e.g. statutes against the Rule in Shelley's Case).


    In 1789 (none / 0) (#54)
    by Steve M on Mon Aug 17, 2009 at 04:48:10 PM EST
    the Judiciary Act prescribed that the federal courts would use state common-law principles as their rules of decision.

    It's not very useful, in my estimation, to imagine a world where we have the same Constitution but an entirely different Judiciary Act.  It was passed two years later by the same basic group of Founders.  They knew all along this would be the deal.


    the question posed is not the utility (none / 0) (#60)
    by Bemused on Mon Aug 17, 2009 at 05:00:53 PM EST
    of imagining it, it's whether the CONSTITUTION foreclosed the possibilirty.

    Again (none / 0) (#62)
    by Big Tent Democrat on Mon Aug 17, 2009 at 05:02:11 PM EST
    I think Steve's arguing that the Judiciary Act is indicative of the Framers' intent.

    and, again I agree with that (none / 0) (#68)
    by Bemused on Mon Aug 17, 2009 at 05:08:36 PM EST
     but the question is what the constituion requires, allows or forbids. It didn't happen of course, but either there could have been an upheaval in the membership of congress or something that radically swayed opinion and if that had occurred the Constitutiuon would not have forbidden a radically diffewrent court system not built upon principles from the common law.

    I think what BTD (none / 0) (#43)
    by eric on Mon Aug 17, 2009 at 04:35:00 PM EST
    is saying is that our judicial system, which happens to be a common law system, is in the Constitution.  It is just the way it is.

    Could Congress vote to abolish the common law and establish a civil system?  Probably, but what would we do about Constitutional Law?  I am sure it would still operate as if under a common law system.


    I think that is more (none / 0) (#53)
    by Bemused on Mon Aug 17, 2009 at 04:47:29 PM EST
    what i am saying.

    more from Obamas BFF (none / 0) (#37)
    by Capt Howdy on Mon Aug 17, 2009 at 04:26:18 PM EST
    In an interview today on MSNBC's "Morning Meeting with Dylan Ratigan," Senate Finance Committee ranking member Chuck Grassley (R) said he'd vote against any health-care reform bill coming out of the committee unless it has wide support from Republicans -- even if the legislation contains EVERYTHING Grassley wants.

    One of the things I hate most (5.00 / 1) (#39)
    by lilburro on Mon Aug 17, 2009 at 04:29:54 PM EST
    about this healthcare debate is having to look at his face.  Seriously.

    Shorter version (none / 0) (#69)
    by MO Blue on Mon Aug 17, 2009 at 05:09:57 PM EST
    I will vote NO on everything.