Junior Ganymede
We endeavor to give satisfaction

Pearce v. Society of Sisters

April 13th, 2017 by G.

I have a suggestion for the Committee.

It started out as a simple suggestion that the holdings of Pearce v. Society of Sisters, Meyer v. Nebraska, and so on be incorporated into a statement of parental rights as against the state.

But it occurred to me that this was just an instance of a more general case. For a long time, judicial supremacy and the difficulty of amending the Constitution has made court cases a de facto method of amendment. The Committee has done sterling work in correcting this problem going forward. They have also incorporated version changes that undo some of the more egregious judicial amendments. Some, but not all. This process needs to be systematized. Either the committee needs to release a technical appendix that lists every major case since the 1.0 version of the Constitution, or else there needs to be some kind of process of reviewing them. Maybe the slate is simply wiped clean. No prior constitutional case is precedential any more. Or maybe Congress is required to have an up or down vote on each case, no debate allowed, that determines whether it will have the status of precedent or not.

Comments (10)
Filed under: Deseret Review | No Tag
No Tag
April 13th, 2017 07:00:06

April 13, 2017

I suggest that the slate is wiped clean. Previous precedents are merely suggestions, but are not binding. I am no judicial expert, but I get the feeling that all these precedents are now an elaborate Rube Goldberg machine.

April 13, 2017

Before attempting to ‘gin up a solution, we need to clearly understand the problem.

There is no rule of law where the requirements of the law are not known in advance. This is the reason why ex post facto laws and bills of attainder are expressly prohibited in both Constitution 1.0 and the draft proposed Constitution 2.0.

Stare decisis is an essential part of extending the rule of law, because it gives a court the warrant to decide what the law requires when a case comes before the court in which the requirements of the law are genuinely unclear. Other courts are expected to respect this precedent, so the precedent clarifies the law in these genuinely ambiguous cases. Of course, this kind of screws the losing party in the original decision, since there wouldn’t need to be a precedent set if they were clear on what the law required of them, but Life Ain’t Fair.

Where the law can be changed by the legislature, by statute, stare decisis is fairly harmless. If the court gets a precedent wrong, by which I mean the court decides the case in a way the legislature does not feel reflects its intent, the legislature is free to enact a statute reversing the precedent, and the court is bound to respect it.

The problem comes when the court decides a case on Constitutional grounds. The legislature cannot correct a bad Constitutional decision by mere statute, because the Constitution overrides the legislative power of statute. This is a feature when the legislature has enacted a statute beyond its Constitutional authority. It is a bug when the legislature has acted Constitutionally but in pursuit of a policy a court does not like. The court then faces the temptation to overturn the statute in pursuit of its policy preferences, claiming Constitutional grounds for doing so that prevent the legislature from simply reversing the decision by enacting a new statute.

So the question becomes: In Constitutional cases, how do we ensure that decisions that are actually in keeping with the Constitution, and with precedent within the proper scope of precedent and consistent with the Constitution, have the necessary force to restrain the legislature and executive; while ensuring that decisions that are impositions of the judges’ policy preferences, justified by a spurious appeal to the power of the Constitution, are overturned and the judges responsible removed from power?

What further complicates the matter is that we currently have a very narrowly divided polity, split along tribal lines, and one of the tribes is frankly contemptuous of the rule of law while the other is rapidly becoming so. So any proposal to override bad decisions by supermajority is useless, because it is impossible to form a supermajority on any but the most trivial and mundane issues, so the Court will continue to have power to enforce its own narrowly decided decisions split along tribal lines.

This suggests: (1) Requiring SCOTUS to make decisions by supermajority; (2) adopting a new Constitution that is mind-numbingly specific on as many Constitutional issues as possible, to give the Court less cover for creating spurius precedents; (3) getting rid of the tribes that openly disdain rule of law, and reforming the ones that still have some vestiges of respect for it, which restores some hope to restraining the Courts with a legislative supermajority; or (4) instituting a formal mechanism apart from the legislature for punishing errant SCOTUS judges.

(1) I think is unworkable. The effect will simply be to bump the power to set spurious precedent to lower courts. If they are also required to decide by supermajority, a great many hard cases will simply not be decided, which simply hastens the breakdown of rule of law.

(2) may help, but only with the bad decisions we anticipate in advance, and only if the Court cares about the Constitution. By definition, a Court setting bad precedents does not. They ignored the old Constitution and old precedents (more on that later); why should we expect them to respect the new ones?

(3) suggests we require only a very few states to ratify Constitution 2.0 before it goes into effect for those states. Constitution 2.0 becomes, in effect, an Act of Secession for those states where there is strong dissatisfaction with the current breakdown in Constitutional law. Thus, the tribes will more or less automatically separate into distinct polities, one of which may actually respect rule of law. The problem is the huge potential for civil war, but perhaps that’s already inevitable.

(4) makes me think of the Nephite system of judges. Judges were appointed by “the voice of the people”, which we tend to interpret as democratic election in our modern understanding, but which almost certainly corresponded more to Roman appointment of censors through the Senate. (The Senate was understood originally to be a conclave of heads of tribes, each speaking for his tribe.) The key thing is that appeal of decisions ran both ways; you could appeal a decision of a lower judge to a higher judge, but you could also appeal a decision of the chief judge to a conclave of lower judges (though, curiously, there is no recorded case in the Book of Mormon where this was ever done.) I’m not sure how useful this is, considering that the Nephite polity broke down even faster than our own.

Really, I’m very pessimistic on this whole business of Constitutional reform. A Constitution can be no better than the people it governs, and Americans are becoming a hard-hearted and stiffnecked people — and not in the way the Left habitually accuses it of. They’re the most hardhearted and stiffnecked of all.

April 13, 2017

All that said, I think a technical appendix reviewing every important decision by the Court might be useful for its educational value. I hope the Committee will consider it.

April 13, 2017

Perhaps part of the problem could be fixed by giving courts having the power to demand a clarification from the legislature.

April 13, 2017

Jefferson originally said we needed a new Constitution every 19 years, which shows how forward thinking he was. He recognized the tendency to aggregate power and the inability of the next generation to affect change.

Even if we have a perfect government, it’s not just to bring up the rising generation under such circumstances without their ability to meaningfully choose their destiny. God essentially acknowledges this when he sent his children here for a period to lean and experience mortality, an exercise in what you might calling learning how to administer eternal government.

April 13, 2017

The judiciary was supposed to be a non-political branch.

I read somewhere recently that the left considers the courts to be a magic lamp. Rub it long enough, and it will give you what you want. They have been very good at that strategy.

April 13, 2017

Leo, I think that’s what has been termed “The Long March through the institutions”. Namely, academia, the media (news and entertainment), gov’t bureaucracy, and the judiciary. It would take another 50 years to reclaim those institutions, which I don’t think can be done before a societal collapse.

April 14, 2017

Vader, I finally finished that massive block of text, and I have to say, I think that (4) the Nephite option was excellent and underappreciated. I am no lawyer, but I think it is a good idea to include that in the next Constitution draft. I do think these things were specifically given to us, for us to use them.

April 14, 2017

One of the line of precedents requiring serious thought is the incorporation doctrine, which holds that the federal bill of rights applies to the states, in a loosey-goosey way.

April 14, 2017


If it will take 50 years to reclaim these institutions, then we need to start doing so immediately!

Sorry, the comment form is closed at this time.