Posted by Donald Bly on 6 March, 2010 at 10:43 am. 12 comments already!

As of late, especially with the question of the constitutionality of government mandated health care that we should look at how the SCOTUS makes its decisions. Constitutional law scholarship is divided into two camps.

First, there are the originalists and textualists that believe the text of the Constitution, as it was originally understood, is controlling in most constitutional cases.

Second, there are the followers of Supreme Court precedent, who follow the doctrine over the document and believe in a fairly robust theory of stare decisis in constitutional.

Stare decisis is the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions.

There was a marked a shift away from teaching the former at law schools during the early twentieth century in favor of a focus on the later. Now this may seem to be an innocuous shift but it has far reaching consequences due to its emphasis on precedent. With the makeup of the judiciary consisting of a preponderance of judges that were taught the stare decisis philosophy, the Constitution transforms from a bedrock document to one more akin to the shifting sands of a wind blown dune.

The SCOTUS recently decided that Corporations have all the rights of a person. Let us examine the use of stare decisis in this particular case as an example of how the flavor of our country can be affected by such philosophy.

The Supreme Court in Santa Clara County vs Southern Pacific Railroad issued an obiter dictum statement that corporations are entitled to protection under the Fourteenth Amendment. An obiter dictum is Latin for a statement “said by the way.” A passing remark from Chief Justice Morrison R. Waite, recorded by the court reporter before oral argument, now forms the basis for the doctrine that juristic persons (corporations) are entitled to protection under the Fourteenth Amendment. Whether or not Chief Justice Waite’s remark constitutes binding precedent is arguable, but subsequent rulings treat it as such.

The decisions reached by the Supreme Court are promulgated to the legal community by way of books called United States Reports. Preceding every case entry is a headnote, a short summary in which a court reporter summarizes the opinion as well as outlining the main facts and arguments. For example, in U.S. v. Detroit Timber and Lumber (1905), headnotes are defined as “not the work of the Court, but are simply the work of the Reporter, giving his understanding of the decision, prepared for the convenience of the profession.”

Before publication in United States Reports, Davis, the court reporter, wrote a letter to Chief Justice Morrison Waite, dated May 26, 1886, to make sure his headnote was correct:

Dear Chief Justice, I have a memorandum in the California Cases Santa Clara County v. Southern Pacific &c As follows. In opening the Court stated that it did not wish to hear argument on the question whether the Fourteenth Amendment applies to such corporations as are parties in these suits. All the Judges were of the opinion that it does.

Waite replied:

I think your mem. in the California Railroad Tax cases expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision.

We see that Chief Justice Waite acknowledge in the case of Santa Clara County vs Southern Pacific Railroad that they specifically “avoided the constitutional question”.

Corporations, because of the recent Supreme Court decision granting unfettered free speech rights, wield an enormous amount of influence over our political system based on a precedent that wasn’t even a part of the Santa Clara County decision but simply a court reporter’s “head note” concerning the case.

The question of the constitutionality of a corporation being a “person”, has never been addressed yet we have subsequent Supreme Court decisions being made based on this so called “precedent”.

Now what’s all this got to do with the price of tea in china? During FDR’s reign, his policies were time and time again declared unconstitutional. FDR frustrated that he could not enact policies that were clearly unconstitutional began an assualt on the Supreme Court.

Roosevelt stunned Congress in early 1937 by proposing a law allowing him to appoint five new justices, a “persistent infusion of new blood.” This “court packing” plan, FDR’s attempt at circumventing the Constitution ran into intense political opposition from his own party, led by Vice President Garner, since it seemed to upset the separation of powers and give the President control over the Court. Roosevelt’s proposals were defeated.

The Court, in an act of appeasement, wishing to end the confrontation with the administration found the Social Security Acts to be constitutional. It appears to me this decision was a result of an almost extortion like use of power by Roosevelt. Roosevelt’s unprecedented four terms in the Office of President, coupled with control of Congress squarely in the hands of the Democratic party allowed Roosevelt to ultimately pack the court with sympathetic justices when deaths and retirements on the Supreme Court allowed. Between 1937 and 1941, he appointed eight justices to the court.

Because subsequent Supreme Courts relying more on precedent than a true examination of the Constitution and our founder’s intent have usurped power from the States and the people, granting the Federal Government dominion in areas where it has no constitutional authority, all based on precedent.

Some wish to regale FDR as one of the “greatest” Presidents. He did govern during difficult times, however, I cannot categorize him as such. A great President takes an oath to uphold and defend the Constitution and does so whenever it is under attack. Roosevelt on the other hand, assaulted the Constitution at every turn and ultimately used appointments to the Supreme Court that were sympathetic to his policies to further that assault.

It is striking that there is not a word in the Constitution that says in any way that precedent trumps the text. Article V specifically sets forth a procedure by which the constitutional text can be changed through the amendment process. Amendment is the only process the constitutional text provides for making changes in the document. Five-to-four or even nine-to-zero Supreme Court decisions do not trump the text. Moreover, in the Supremacy Clause, the document says that the Constitution, laws, and treaties shall be the “supreme Law of the Land,” but makes no mention of Supreme Court decisions.

Today, we consistently see 4-5 decisions by our Supreme Court justices which can only be attributed to ideological differences and NOT the strict application of the Constitution.

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