A constitutional significance for precedent: originalism, stare decisis, and property rights.

• Author: Price, Polly J.

INTRODUCTION

Imagine a judicial opinion that does not cite or refer to a prior opinion of that court on the same issue. An older case, significantly parallel in real facts, is knowingly disregarded without mention by the same court a few years later. Even Karl Llewellyn--who with legal realists earlier in the twentieth century observed that judges have a huge amount of leeway in choosing relevant prior precedent (1)--termed such willful disregard of authority to be "[f]latly illegitimate" if engaged in by appellate courts in the United States. (2) One would be hard pressed to find any observer of the U.S. legal tradition to dispute Llewellyn's characterization. Such an opinion would invite immediate scrutiny of the court's competence--raising the possibility of disregard for the obligation to dispense even-handed justice, if not of outright corruption. A judge's obligation to consult precedent before deciding a case has been a core feature of the rule of law in the United States whether the relevant source of law at issue is statutory, constitutional, or common law. (3) Consistency, equal treatment of similarly situated parties, judicial restraint, and efficiency concepts are some of the reasons put forward to require consideration of prior court judgments that are inarguably relevant to a present controversy. (4)

Even if there is general agreement that a court's precedent has some significance for future decisions, there is virtually none about the extent to which the later court is obligated to defer to that precedent. The command of stare decisis has never been absolute in the United States, but neither has it been insignificant.

The topic of this symposium asks whether, as a matter of original understanding, the doctrine of stare decisis poses some constraints on judges when dealing with interpretations of the federal Constitution, and, in particular, whether an originalist owes some obligation to a non-originalist precedent. My answer to this question is a qualified "yes," and I conclude, as have others, that the original understanding of "judicial power" in Article III (5) encompassed significant respect for prior precedent as a starting point for judicial decision making. (6) My contribution here is to explore in greater detail a shared historical understanding, evident from the period immediately following the Revolution through the Civil War, that compelled judges to protect expectation rights when faced with the choice of disregarding prior precedent.

This Article considers the origin and elaboration of a stare decisis property rule as a form of argument in state courts from the Founding period through the American Civil War. Although recent scholarship addresses the development of the doctrine of precedent in the early decades of the United States, thus far scholars have neglected to emphasize that the earliest articulations of the concept explicitly link stare decisis to property rules. In the United States, the concept of stare decisis assumed the larger rhetoric of property rights from the Founding era. State court judges gave the concept of stare decisis a distinct "vested rights" flavor and believed that the protection of settled expectations about property and contracts was essential to the preservation of property rights. (7) Lawyers, as well as judges, clearly expected courts not to deviate from precedent in a way that would unsettle property transactions. There is no reason to believe that federal judges in this era--who had significantly fewer opportunities to address these issues than did state judges--held materially different views. (8)

The discussions in this Article proceed as follows. Part I briefly introduces several areas of contemporary debate for which this inquiry is relevant. In Part II, I examine previous scholarly evaluations of the doctrine of precedent in the formative period. (9) I provide an alternative explanation for the adoption by American courts of rhetoric favoring stare decisis, one that links the rhetoric used by these courts with the predominant property discourse of the Founding period and with the Marshall Court's subsequent emphasis on vested rights and the Contracts Clause. I suggest that the stare decisis property rule gained widespread acceptance as a powerful form of argument because of the considerable emphasis on vested property rights in the formative era. In Part III, I use the formative era's invocations of the stare decisis property rule to suggest that in this period state courts tended to preserve property rules that they believed were necessary to avoid disrupting a large number of transactions. The cases that I discuss form the basis for an argument that jurists in the antebellum era held distinctly "conservative" ideas about the nature of change in the common law, at least when property reliance interests were at stake. The conclusion of this historical study is a modest contribution to the contemporary debate about the binding nature of precedent in constitutional law.

1. PRECEDENT AND JUDICIAL METHOD IN CONTEMPORARY DEBATE

   Scholars have recently given renewed attention to the formation of the doctrines of precedent and stare decisis in the American Founding period. The impetus for this renewed scholarly attention was the claim--by Judge Richard S. Arnold of the Eighth Circuit Court of Appeals--that some expectation of a doctrine of precedent was implicit in the Founders' understanding of Article III of the U.S. Constitution. In Anastasoff v. United States, a three-judge panel, whose opinion Judge Arnold authored, held the Eighth Circuit's rule against citing unpublished opinions as "precedent" to be unconstitutional based upon an original understanding of "judicial power" in Article III. (10) The claim provoked immediate debate about the origins of stare decisis in the United States. (11)

   In Anastasoff, Judge Arnold posed an important question that no critic has effectively answered. When is it acceptable for a court to ignore its own prior precedent on a controlling point of law, one directly on point, decided a few years earlier? Or, when is it acceptable for a court to dispense justice unevenly, or to treat like cases differently? This is the greatest sin identified by Llewellyn in The Common Law Tradition, lesser only to outright corruption in an individual judge. (12) Rules that prevent citation to the vast majority of a court's prior work allow judges to ignore the resolution of cases from the week, month, or year before, and to opt for a different rule apparently on a whim.

   Judge Arnold's original point has morphed into a broader debate about originalism and stare decisis. The common law tradition of adherence to decided cases is at issue in the debate about originalism and precedent for constitutional decisions. No one suggests that the Supreme Court treat each case as a brand new issue, not even referring to how it decided a similar case in the past. (13) Instead, the quest is to determine whether some rules can be agreed upon for the doctrine of stare decisis.

   For modern courts, it is common to recognize a hierarchy for the degree of respect owed to prior precedent. (14) First, court decisions interpreting statutes are often said to be owed the highest degree of stare decisis because legislatures require stability of Interpretation of statutes from the courts for the efficacy of the law-making power. If courts have Interpreted a statute incorrectly, the legislature may respond by amending the statute. If, however, the interpretation of a statute changes from year to year, the legislature has less control over the content of the statutory command. Second, common law interpretations by courts should remain stable for much the same reason: common law adjudication is gap filling to provide a source of law in the absence of express (and superior) legislative direction. If a particular common law rule is changed one year, changed in the next, and quickly changed again, the legislature is unsure of the need for a response to endorse one view or reject another. Third and last in the hierarchy of decisions to which stare decisis has a claim are constitutional decisions. The rationale for this lesser degree of deference is a separation of powers argument based upon the fact that the federal Constitution is difficult to amend. The argument is that, in constitutional law, more so than for other sources of law, the "people" have no effective recourse to correct errors in legal interpretation by the judicial branch.

   This hierarchy of degrees of respect for precedent based upon source of law is not historical. Instead, the Founding period and later generations viewed stare decisis as an important tool to protect reliance interests, regardless of the source of law. As I illustrate in this Article, further examination of historical practices suggests that earlier judges considered protection of expectation interests akin to constitutional command. The Founding generation did seem to expect that constitutional decisions by courts would generally follow the common law tradition of judicial decision making. A study of early state court practices is important for this conclusion. For primarily jurisdictional reasons, federal judges had fewer opportunities than did state judges to expound upon the meaning of stare decisis in the early decades following the establishment of the U.S. Constitution. In addition, state judges generally enjoyed greater prestige than did most federal appointees. For these and other reasons, an understanding of early state court practices is necessary to understand the relationship between originalism and precedent.

   State court judges exhibited a strong commitment to stare decisis in cases in which property interests were at stake. This is important because most civil cases of that period involved property or contract disputes, and these judges tended to view the common law as a mechanism for ordering relations...