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Is Justice Kavanaugh Grievously Wrong on Stare Decisis?

Yesterday the Supreme Court heard an important case, Gamble v. United States, on the Double Jeopardy Clause. The question presented is whether successive prosecutions by state and federal governments for the same offense violate the Clause. The decision will be as salient for constitutional methodology as it is for the relatively few defendants it will affect.

The attorney for the defendant in this case presented substantial evidence that at the time of the enactment of the Constitution, double jeopardy in English law was understood to bar successive prosecutions by England and a foreign government. That history provided the best window into the scope of double jeopardy and sovereignty in 1789 and ruled out prosecution by different sovereigns. Indeed, a fortiori, the Clause, he contended, should bar successive prosecutions by the state and federal government, because the dangers of collusion are even greater between these sister actors.

For the purposes of this post, let’s assume that the defendant has the better of the historical argument. That seemed to be the assumption of most of the justices. The obstacle to his winning is a series of cases that have held the Double Jeopardy Clause does not bar prosecution by both the state and federal government, precisely because they are separate sovereigns. The question therefore is what weight should be given to precedent when it conflicts with a better understanding of the original meaning of the Clause.

Unfortunately, Justice Kavanaugh seemed to suggest that a venerable rule in case law should be overruled only if it were “grievously wrong.” That seems to me to be itself a grievously wrong standard. First of all, it’s not clear it is a rule. “Grievously wrong” seems open-ended and invites a decision about how good the prior case is as a matter of policy in the Justice’s view—even if it is wrong as a matter of interpretation. I agree that with Kavanaugh that Constitution contemplates stare decisis, but there is no evidence that it contemplates that standard.

Perhaps a more charitable reading is that Kavanaugh believes that a decision should be retained as long as it is not rooted in a grievously wrong interpretation of the original meaning. But that is not a good rule either. To be sure, if prior Supreme Courts have reviewed and substantially considered the same evidence relevant to the original meaning and made a good faith effort to apply that meaning, the Court might well adhere to precedent. There is then little reason to believe that the contemporary Court is more likely to come to the right interpretation. But in this case, only one prior decision mentioned the relevant English law and it dismissed the evidence in a conclusory footnote. If a rule barring successive prosecutions by separate sovereigns captures the better meaning– certainly if it is better by clear and convincing evidence– retaining the old rule requires countervailing considerations to support that position.

Kavanaugh suggests that the stability is that countervailing consideration.  But if one believes, as Mike Rappaport and I have argued, that the original meaning is likely to have better consequences than the alternatives, it is good consequentially to encourage challenges to decisions that are not rooted in the original meaning.  The abstraction of stability should not defeat the concrete benefits of a likely better rule.

Nevertheless more specific considerations in favor of a past decision may have greater weight, defeating the likely beneficence of the new rule. For instance, if the entire government has grown to operate under the old rule, as it may have under the too expansive view of the Commerce Clause initiated by the New Deal Court, the enormous costs of discarding it may offer a reason to maintain the overly expansive view. But the government has not changed its operations in any substantial way because of the separate sovereigns’ interpretation of the Double Jeopardy Clause. Its disappearance would hardly be noticed.

Justice Neil Gorsuch, in contrast, happily seemed to favor following the original meaning even at the expense of the Double Jeopardy Clause precedents. In just two months, the two Trump justices, Gorsuch and Kavanaugh, seem to be diverging on essential questions for modern originalism. There may be no single model of a “Trump judge” after all!

Reader Discussion

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on December 07, 2018 at 09:16:00 am

Agree with your analysis, and Kavanaugh's view is indeed discouraging. Privileging the institutional purity of the Court above all else makes it into a Church. Kavanaugh especially ought to be a Luther and not a Leo X. The liberal justices freely overrule precedent any time it suits them in spite of the political philosophy underlying the Constitution (and without regard to any "costs" it may impose on the government or anyone else). Here the Court has a chance to be faithful to that philosophy and it is the newest conservative Justice who will refuse? Appalling.

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QET
on December 07, 2018 at 10:44:14 am

Oh no!

Kavenaugh's major C of A opinions offer little guidance and some doubt as to where he will come down in the cases of big, bad precedent, like Roe/Casey. Kavenaugh's purported assurance of Senator Collins on the matter blurs the guidance and intensifies the doubt. Reading McGinnis' double jeopardy inferences is like eating TexMex chili after suffering heartburn.

Could it turn out that Kavenaugh proves Trump wrong and the Chief Justice right in Roberts' clearly wrong assertion that there are no political judges? Is "Trump-judge" Kavenaugh an "Obama judge" on abortion? If so the Dem's on the Judiciary Committee wasted some of the best displays of demagoguery the nation has seen and beat up on the wrong guy.

McGinnis says, "Unfortunately, Justice Kavanaugh seemed to suggest that a venerable rule in case law should be overruled only if it were “grievously wrong. That seems to me to be itself a grievously wrong standard...Grievously wrong” seems open-ended..."

And, I would add, it's not just "open-ended" but utterly subjective, making even its mere utterance by an originalist as a decision-making standard an affront to orthodoxy.

Then McGinnis notes as to maintaining a wrong precedent that Kavenaugh sees virtue in the "abstraction of stability..."

To invoke abstraction, any abstraction, as a decision-making standard seems a logical contradiction since the essence of abstraction is the absence of standard. Further, the "abstraction of stability" is an open invitation to, if not the embodiment of, Brennan-like judicial subjectivism. And invoking "stability" as a reason to preserve bad law is the arrogance of jurisprudential irony when one considers that, in the long-run of our republican history, no official act can be more constitutionally-destabilizing than a bad Supreme Court decision on a major matter.

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Pukka Luftmensch
on December 07, 2018 at 11:33:48 am

You beat me to it!

"And invoking “stability” as a reason to preserve bad law is the arrogance of jurisprudential irony..."

and

(McGinnis):

"The abstraction of stability should not defeat the concrete benefits of a likely better rule.

Nevertheless more specific considerations in favor of a past decision may have greater weight, defeating the likely beneficence of the new rule. For instance, if the entire government has grown to operate under the old rule, as it may have under the too expansive view of the Commerce Clause initiated by the New Deal Court, the enormous costs of discarding it may offer a reason to maintain the overly expansive view. But the government has not changed its operations in any substantial way because of the separate sovereigns’ interpretation of the Double Jeopardy Clause. Its disappearance would hardly be noticed."

I suppose that only certain "stabilizing abstractions' are to be denied - that is, only those whose absence we would barely perceive - according to McGinnis.
Indeed, why concern ourselves with such trivial matters? when we can simultaneously ignore the far more serious and *consequential* debasement of our Constitutional protections embodied in SCOTUS Commerce Clause jurisprudence and the consequent expansion of Federal Commerce Clause jurisdiction and power.
Just how consequential is that?
It would seem that McGinnis would allow the more destructive of precedents to stand, that which completely altered the relationship of the "separate sovereigns, ostensibly at issue in the Double Jeopardy proceedings, such that there is "One Ring to Rule them All", that has permitted Federal intrusion into all manner of heretofore uncharted and unwelcoming domains, that has reduced the States to no more than mere "municipalities" subordinate to their distant political masters while inducing fear, confusion and civic lassitude in the citizenry.
In short, a precedent that has fundamentally altered the very structure of our Republic is to be provided ongoing judicial sanction - all in the name of Stability.

FDR, and his ilk, had it right - the Bigger the Crime, the greater respect due to the villain.

In a side note:

I have never been able to avoid the sense that McGinnis' assertion that the "Good Constitution" is good, precisely because it reaches good consequences is, in fact, a stealth form of "consequentialism"; it, too, appears to be purposive, seeking to divine that mode of judicial reasoning that will result in good consequences.

I am not unaware of the intent (and I agree) of McGinnis and of the Crafters to accomplish precisely that - good consequences; thus, the thrust of McGinnis' argument: "If we adhere to the original document / text, we will GENERALLY arrive at satisfactory outcomes. Agree wholeheartedly.

Comes now McGinnis justifying the actual debasement of that Original document - all in the name of some abstraction" - stability - which he himself earlier critiques as an insufficient justification for stare decisis.
Can it be that McGinnis views *stability* not only as a GOOD consequence, which, as appropriate, it is, BUT that stability is one of the cardinal virtues hidden within the penumbras and emanations of COTUS.

Here, I think McGinnis indeed has his eye on "consequence."
Understandable, is it not? After all, how many of us have had a begrudging admiration for the Great Thief and scorn the petty criminal. Al Capone got good press; the miscreant robbing the local 7 -11 is generally scorned.

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gabe
on December 07, 2018 at 15:04:06 pm

As purely pertains to Roe, since our venerable Pukka Luftmensch raises it, Karl Popper (or his student who was apt to apply the Logic of Scientific Discovery"1 to the Logic of Jurisprudential Discovery), might conclude that Roe will one day be over-turned, with or without our so-called "Ringer" Justice Kavanaugh.

Popper has asserted, “…science and scientific objectivity do not (and cannot) result from the attempts of an individual scientist [or an individual court of nine) to be ‘objective’, but from the friendly-hostile co-operation of many scientists. Scientific objectivity can [therefore, better] be described as the inter-subjectivity of scientific method…” 2

He further maintains, "that scientific practice is characterized by its continual effort to test theories against experience and make revisions based on the outcomes of these tests. By contrast, theories that are permanently immunized from falsification by the introduction of untestable ad hoc hypotheses can no longer be classified as scientific."3

(Skeptics of Substantive Due Process and Natural Law similarly fail to recognize that Legal/Moral Objectivity can be sufficiently approximated by this same method of inter-subjectivity, and its abuses, (i.e. Dred Scott, Roe, etc.), avoided or mitigated by applying purely by acknowledging "Popper’s falsificationist methodology".4)

What better example of the “untestable ad hoc hypotheses” than the seeking by the Left during the Kavanaugh confirmation hearings to guarantee Roe’s immortalization, as it were, through the administration of a newly discovered booster immunization shot generically referred to as, “Super Precedent”, (made all the more remarkable because it was Feinstein so dubbing it; an uncharacteristically humble act for Despots who usually reserve such lofty appointments for themselves), and thereby setting it at an elevation even above the major gods on Mt. Olympus; and thus endowing it with a precedential permanence, (particularly Roe, as buttressed by Casey, and Whole Woman’s Health), unapproachable at the risk of certain death by any mere mortal careless enough to rub its ark, or lock gazes with it?

As such, Blackman’s “Roe rationale”, just as Taney’s Dred Scott rationale, “theories that [sought to] permanently immunize(d) from falsification by the introduction of untestable ad hoc hypotheses can no longer be classified as [having] scientific [objectivity]” – Or, in the case of Jurisprudence, as being objectively legal or constitutional, and therefore, Roe does not hold up to what may be called an inter-subjective jurisprudential objectivity.

Ironically and contrary to their best efforts, Popper’s theory predicts, even mandates, that Roe, Like Dred Scott will eventually, (hopefully without resort to full-out civil war), fall dead undiagnosed, to the dormant infection hubris assailed as untestable.

1 Popper, Karl, Logic of Scientific Discovery, Basic Books, Inc, 1959 English Translation.
2 https://www.iep.utm.edu/pop-sci/
3 http://idiolect.org.uk/notes/?p=6177
4 Ibid

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Paul Binotto
on December 07, 2018 at 16:34:37 pm

Crikey, I think you're onto something.
I had missed the consequentialism component lurking in the criticism. Thus would the defender of originalism resort to what he decries.

On this entire overwrought matter of stare decisis it seems that only Justice Thomas has it right, he, and he alone among the Justices, having adopted the tenet of "common sense" into the doctrine of originalism: if the decision was wrong then for God's sake correct it. I simply cannot conceive of anything worse for constitutional jurisprudence than a wrong constitutional decision except a stubborn refusal to correct it. Bad constitutional law, like bad wine, gets worse, not better. with time.

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Pukka Luftmensch
on December 07, 2018 at 17:10:10 pm

My own commentary on this post having seemingly fallen prey to a Facebook-Twitteresque censoring algorithm (I will hold out hope that it may yet appear), I will therefore, coattail Pukka & Mr. Gabe...there's an old saying among traditionalist like me, "Two wrongs don't make a right", in this instance, failing to correct a wrong out of an interest of maintaining stability is the second wrong, and perhaps the most egregious.

It is my developing view that a Rule of Lenity should be applied to constitutional jurisprudence, whereas, where it may be “silent” on an issue of grave import, perhaps one that to the Framers was too obvious to require enumeration, but one which over time has become muddled by the late 20th or 21st century, as a rule preferential to a one that SCOTUS has a hard-fast duty to “discover” definitively (even at the expense of making one up out of thin air), what the Constitution says. And, that such lenity should apply on such a particular constitutional issue so long and until that time when sufficient national political consensus requires that Constitutional Amendment should be ratified to clarify it by political process - nowhere moreso than for issues whose judicial outcomes can result in forseeable grievious wrongs.

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Paul Binotto
on December 07, 2018 at 17:11:00 pm

And like "spoiled" or "corked wine", and SCOTUS Commerce Clause jurisprudence is clearly *corked* it is best dumped down the drain. A few squirts of Febreze liberally applied may be sufficient to mask the smell.

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gabe
on December 07, 2018 at 17:12:07 pm

As I say, coat-tailing:

As purely pertains to Roe, since our venerable Pukka Luftmensch raises it, Karl Popper (or his student who was apt to apply the Logic of Scientific Discovery"1 to the Logic of Jurisprudential Discovery), might conclude that Roe will one day be over-turned, with or without our so-called "Ringer" Justice Kavanaugh.

Popper has asserted, “…science and scientific objectivity do not (and cannot) result from the attempts of an individual scientist [or an individual court of nine) to be ‘objective’, but from the friendly-hostile co-operation of many scientists. Scientific objectivity can [therefore, better] be described as the inter-subjectivity of scientific method…” 2

He further maintains, "that scientific practice is characterized by its continual effort to test theories against experience and make revisions based on the outcomes of these tests. By contrast, theories that are permanently immunized from falsification by the introduction of untestable ad hoc hypotheses can no longer be classified as scientific."3

(Skeptics of Substantive Due Process and Natural Law similarly fail to recognize that Legal/Moral Objectivity can be sufficiently approximated by this same method of inter-subjectivity, and its abuses, (i.e. Dred Scott, Roe, etc.), avoided or mitigated by applying purely by acknowledging "Popper’s falsificationist methodology".4)

What better example of the “untestable ad hoc hypotheses” than the seeking by the Left during the Kavanaugh confirmation hearings to guarantee Roe’s immortalization, as it were, through the administration of a newly discovered booster immunization shot generically referred to as, “Super Precedent”, (made all the more remarkable because it was Feinstein so dubbing it; an uncharacteristically humble act for Despots who usually reserve such lofty appointments for themselves), and thereby setting it at an elevation even above the major gods on Mt. Olympus; and thus endowing it with a precedential permanence, (particularly Roe, as buttressed by Casey, and Whole Woman’s Health), unapproachable at the risk of certain death by any mere mortal careless enough to rub its ark, or lock gazes with it?

As such, Blackman’s “Roe rationale”, just as Taney’s Dred Scott rationale, “theories that [sought to] permanently immunize(d) from falsification by the introduction of untestable ad hoc hypotheses can no longer be classified as [having] scientific [objectivity]” – Or, in the case of Jurisprudence, as being objectively legal or constitutional, and therefore, Roe does not hold up to what may be called an inter-subjective jurisprudential objectivity.
Ironically and contrary to their best efforts, Popper’s theory predicts, even mandates, that Roe, Like Dred Scott will eventually, (hopefully without resort to full-out civil war), fall dead undiagnosed, to the dormant infection hubris assailed as untestable.

1 Popper, Karl, Logic of Scientific Discovery, Basic Books, Inc, 1959 English Translation.
2 https://www.iep.utm.edu/pop-sci/
3 http://idiolect.org.uk/notes/?p=6177
4 Ibid

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Paul Binotto
on December 07, 2018 at 19:49:57 pm

Stan, did you say "Febreze?''

" Well , here's another nice mess you've gotten me into. "

Henceforth, I shall refer to the likes of Arthur Schlesinger, Jr. (FDR and JFK,) Jon Meacham (GHWB) and Douglas Brinkley (anything he writes) as the Febreze Historians.

The Supreme Court badly needs one to address its stare decisis odor.

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Pukka Luftmensch
on December 08, 2018 at 02:07:45 am

Was somebody arguing that there is a "single model of a Trump judge"?

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David
on December 08, 2018 at 10:12:44 am

Justice cannot serve when there is an error in Substantive, and thus Procedural Due Process Law.

One can know through both Faith and reason, that a human person can only conceive a human person, and thus every son or daughter of a human person, from the moment of creation at their conception, can only be a human person.

Our unalienable Right to Life, the protection upon which our unalienable Right to Liberty, and The Pursuit of Happiness depends, Is Endowed to all persons, (not just “naturalized citizens”), from God, at the moment of our creation, which is not the same moment we came forth from our Mother’s womb.

Roe v. Wade, by denying that every son or daughter of a human person is a human person, you being you, since the moment of your conception, I being I, since the moment of my conception, denied that our inherent Right to Life, which can only be endowed to us from The True God, The Most Holy And Undivided Blessed Trinity, serves to secure
and protect the inherent unalienable Right to Life of all persons on every point of Time and Space in God’s Universe.
All human life is Sacred, and not a “disease”, and because human life is Sacred , we must protect human life from harm.

https://apps.oyez.org/player/#/burger3/oral_argument_audio/16650

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Nancy
on December 08, 2018 at 10:57:01 am

Paul, nice to hear from you. Your Popper point applied to bad Supreme Court precedent is intriguing. I have not read Popper (I know: that's almost a venal sin warranting a priestly confession,) but I have read Thomas Kuhn and, like you on Popper's theory, am impressed with the notion of applying Kuhn's paradigm shift thought to the development of theory and the correction of error in law and social sciences. There's so much to work with!

But whether a) Roe's errors are exposed to scientific objectivity (per Popper) when its proponents' theories are denied their privileged political luxury of permanent "immunization from falsification by the (incessant political) introduction of untestable ad hoc hypotheses (and thus) can no longer be classified as [having] scientific [objectivity]” and, hence, are then tested to destruction by scientific objectivity, (as you suggest, death from "the friendly-hostile co-operation of many scientists, the inter-subjectivity of scientific method…") or b) as I predict per Kuhn, the growing mountain of evidence conflicting with Roe's consensus grows to the point of crisis, a new legal/social consensus develops and a paradigm shift occurs that is fatal to Roe, I am convinced that Roe will die, that its fabricated constitutional theory ("Blackmun's lie") will be repudiated, that its un-Godly theological premise will, thank God almighty, be rejected and that its ghastly consequences will remembered and consecrated in eternal mourning as our Shoah, America's burnt offering to secular-progressive, unscientific evil of tens of millions of prenatal infants, and that evil will, itself, be consumed at last in the flames of its own destruction.

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Pukka Luftmensch
on December 08, 2018 at 11:30:42 am

I think there are a number of problems with this assertion. " [E]ndowed to us from The True God, The Most Holy And Undivided Blessed Trinity, serves to secure and protect the inherent unalienable Right to Life."

The people who wrote the Declaration of Independence -- at least the author and two other members of the five person drafting committee -- were militant unitarians and didn't believe in the Trinity.

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Jonathan Rowe
on December 08, 2018 at 12:16:32 pm

Paul:

Good to see you back; hope health issues are resolved.
Re: your 5:12 post.

Excellent syncretic of empirical method v judicial methodology.

Like Pukka, I have not read Popper either; but have read Kuhn. As you have outlined a consonance between Popper and legal reasoning, I believe that there is a consonance between Kuhn's paradigm and the "inter-subjective objectivity" to which you refer. As the former changes, the latter becomes more likely; ultimately, both reinforce each other - UNTIL, sadly, they no longer do so.

But let us hope for an exciting climax and forestall worry about the eventual denouement.

As Pukka cites, millions, (45 million to be precise) have been denied the Introduction to this play we call Life whilst the self satisfied playwright, arrogant, drunk on, and fortified by the cheap wine of Chateau Stare Decisis, continues to staff the Exposition with the same cast of characters, conflicts and conclusions. It is high time for a different script.

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gabe
on December 08, 2018 at 12:34:26 pm

Very good post--- especially the point that while stare decisis is part of our unwritten constitution, "grievously wrong" is not. Too bad that it's too late for an amicus explaining stare decisis, which is half the battle in this case.

This also points to the value of appointing professors and bureaucrats to the court instead of professional judges. Judges tend to be timid and look to citations and duck issues rather than thinking about the statute, common law principle, or constitution. Academics are more theoretical. Another result is that when judges do realize the freedom of being a SUpreme, they go wild and are totally unprincipled, since their only previous principle was to obey Surpeme Court cites.

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Eric B Rasmusen
on December 08, 2018 at 14:47:57 pm

John McGuinness: "We need to have an arbitrary standard for when to overrule bad SCOTUS decisions, one that determines the cost benefit of overruling it based on the whim of people who won't be affected by it"

Also John McGuinness: "Wait, not THAT one!"

Hypocrite.

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John Ashman
on December 08, 2018 at 17:01:44 pm

Is predictable injustice preferable to unpredictable justice? This I think describes the tension between the principles affecting interpretation of the Constitution. The rationale behind stare decisis and written law in general, is that the effects of laws be predictable so that those who are subject to them and those who enforce them will know their responsibilities. There is a reason why laws may be void for vagueness. The predictability provided by consistently applied laws allows people to plan, to assess risks and benefits and interact beneficially with others without fear of arbitrary sanction. There is much benefit to predictability even if it occasionally leads to injustice.

What is less obvious is that unpredictability leads to even greater injustice. Laws that apply on a case-by-case basis, or for which courts carve out exceptions based on pathos eventually devolve in to private law, i.e. privilege, and ultimately foster injustice. So as a first cut, laws must provide for predictability in application, and at first blush, stare decisis may be regarded as a virtue in itself. However, predictability does not result from mindless reverence for precedent. It is not the the black letter synopsis of a ruling in a particular case that should endure, but the reasoning underlying it. This, it seems to me is the entire purpose of the originalist enterprise on this site: the idea that the principles to be affirmed and regarded as valid precedent are those that served as the rationale, not the prose of the Constitution. Some rationales are obvious tenuous expediencies, such as the notion that inanimate objects may commit crimes, thus justifying civil forfeiture, or that a farmer growing wheat for his own use is distorting the global commodities market, or that a fine is a tax. Without a durable rationale, such judicial fudging undercuts the predictability of law and if adopted as practice, the legitimacy of the governments that resort to them.

Activists are always willing to trade predictability for outcomes. There is nothing more arbitrary or self-contradictory than deciding that the rationale for precedent is that social attitudes (standards of decency) are evolving. How can something be decided if the grounds upon which it was decided are evolving? When do they stop evolving so that the average person knows what to expect from the law? There is nothing more hazardous to the rule of law than the siren song of an emotionally satisfying, or ideology-affirming outcome.

It may be that in some cases originalism will uncover sustainable rationales that guide interpretation of the law; in other cases, it likely won't. But the focus should be on rationales that apply equally and consistently. If there is a good reason for trial by federal authorities for the same conduct already tried in state courts, it is that rationale that should be evaluated and either accepted or rejected, and in the interests of predictability, it must be accepted or rejected for everyone. Then you have a precedent. Reaffirming rules out of a sense of institutional deference, sentiment or legal nostalgia should not be allowed to inflict upon posterity the moral vanities and loss of nerve of a handful of jurists. A well-reasoned case will endure, and will do so on the strength of its reasoning. A poorly reasoned one, e.g. one that is based on government expediency or a judge's subjective belief, should be swept aside.

So, should stare decisis be honored in the matter of double jeopardy? It depends wholly on the reasoning of upon which earlier cases were based, and such reasoning should always be open to scrutiny. The purpose of stare decidsis is ultimately to provide predictability by ensuring that wise decisions are not discarded for ephemeral fashion.

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z9z99
on December 08, 2018 at 17:14:20 pm

Um...left off a close italics tag after the last "stare deci[d]sis."

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z9z99
on December 08, 2018 at 18:20:09 pm

With all due respect, it is not an assertion, as God, v. G-D, Is The Judeo Christian God, which is why The Treaty of Paris, was signed in The Name Of The Most Holy &Undivided Blessed Trinity.

https://www.google.com/search?q=the+treaty+of+paris&ie=UTF-8&oe=UTF-8&hl=en-us&client=safari#imgdii=V8ovb0bdd4lI8M:&imgrc=Sy8HkdxLcjTjwM:

I agree “that a theory with greater informative content is to be preferred to one with less content”, and that
“a theory is inductively confirmed by successfully predicting events that, were the theory to have been false, would have been highly unlikely”. And yet, in Roe v. Wade, there was absolutely no evidence that it is possible for a human person to conceive a son or daughter, who is not a human person.

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nancy
on December 08, 2018 at 19:04:26 pm

Pukka,

Thanks - I think a general Confiteor will absolve you on Popper - I am hopeful it will absolve me on Kuhn - Ha!

As Kuhn comes recommended by you and Mr. Gabe, I have it on excellent authority he is worth my time and effort to get acquainted. I find this notion of “paradigm shift” equally intriguing. Thanks for pointing me in its direction.

And, by either account, Roe falls – even better!

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Paul Binotto
on December 08, 2018 at 19:04:48 pm

McGinnis says, "For the purposes of this post, let’s assume that the defendant has the better of the historical argument. That seemed to be the assumption of most of the justices. The obstacle to his winning is a series of cases that have held the Double Jeopardy Clause does not bar prosecution by both the state and federal government, precisely because they are separate sovereigns. The question therefore is what weight should be given to precedent when it conflicts with a better understanding of the original meaning of the Clause."

z9z99's very thoughtful response concludes, "The purpose of stare decidsis is ultimately to provide predictability by ensuring that wise decisions are not discarded for ephemeral fashion."

So the reconciliation of these two assertions would be to enforce the "better understanding of the original meaning of the (constitution)" and to distinguish, disregard or overturn conflicting precedent, stare decidsis notwithstanding, since doing so ensures "that wise decisions (of the Founders) are not discarded for ephemeral fashion," nothing being more constitutionally unwise than a judicial decision contrary to the constitution's original meaning and more "ephemeral" (malleable) than subjective judicial "fashion."

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Pukka Luftmensch
on December 08, 2018 at 19:27:00 pm

Thanks, Mr. Gabe,

The health issues have mostly resolved - thanks for asking!

As I reply to Pukka, thanks to you, too, for pointing me in the direction of Kuhn. I intend to seek him out. The two theories do seem to mesh and align.

I am horrified (and ashamed) by those millions lost; I heard some statistic that they represent a third of the millenial's (I think) generation - bring on that different script!

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Paul Binotto
on December 08, 2018 at 20:23:54 pm

"Judeo-Christian"? Jews don't believe in a Trinue God. My original comment stands. The authors of the DOI were unitarians. The DOI doesn't invoke the Trinity.

The Treaty of Paris perhaps invoked the Trinity because Great Britain was the official Trititarian Nation with its established church.

You may wish to read the Treaty of Tripoli for a different perspective.

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Jonathan Rowe
on December 09, 2018 at 09:38:27 am

This McGinnis post is surprising in that it is, for so many reasons, intriguingly hard to let go of and possessed of both grounds for praise of his originalism and of criticism of the political illogic of his assertion, by way of example, that the Court's bad precedents may be retained "... if the entire government has grown to operate under the old rule, as it may (for example) have under the too expansive view of the Commerce Clause initiated by the New Deal Court, the enormous costs of discarding it may offer a reason to maintain the overly expansive (precedential) view."

Which is to say that the benefit of retaining for the indefinite future (indeed, for hundreds of years) the bad Commerce Clause precedents under which Congress, the states, the economy, employers and employees operated and the country suffered from the time of the late FDR Court until NFIB v. Sibelius in 2016 outweighs the "enormous costs of discarding it..."
Preposterous!

Finally on the double jeopardy/double sovereignty merits of Gamble v. US the following considerations support the defense and warrant overturning precedent, whatever the soi-disant virtues of stare decisis:
1) Federalism as a matter of substantive civil law was never so much a structure of double sovereignty and of separate sovereigns as one of a sovereign within a sovereign, given the supremacy of federal law. Hence, retaining the "old rule" on Double Jeopardy as a bone to the state dog of federalism would be a sham.
2) The potential for abusive collusion, i.e., successive criminal prosecutions by cooperating sovereigns (which the Founders sought to preclude with the Double Jeopardy bar) is, as defense counsel maintained in oral argument, far greater today than when the Founders wrote the constitution. Then federalism was a structural reality with a federal government of delegated, limited powers and with all the remaining powers reserved to the states and the people. That's nearly gone, federalism's a sham, and its only significant vestige is criminal prosecution, on which "cooperating sovereigns" is the rule in the US rather than the exception precisely because it presents (inevitably) an abusive doubling of opportunities for prosecutors to double their publicity by doubling their trials and doubling their chances of doubling the punishment.
3) Federal criminal law, by virtue of hundreds of federal statutes and thousands federal regulations, has virtually occupied the field of human private and commercial conduct so that there is little of so-called state police power now reserved solely to the states or that is not replicated and criminalized by federal law. Just about every misconduct imaginable can now be made a matter of federal criminal law. Federal "hate crimes," for example, constitute nothing more than adding the component of racial or religious animus to myriad state criminal laws so as to federalize run-of-the-mill crimes of violence.
4) An implicit consideration in enacting the Double Jeopardy bar was of the procedural unfairness and denial of due process entailed in trying a person twice for the same alleged wrongdoing. The Court's precedents would perpetuate that practice.

Our badly devolved, Court-sanctioned system of "federalism" in-name-only is rife with double jeopardy opportunities for prosecutorial abuse, procedural inequity and other police state consequences.
I say, "Restore federalism, bar the feds from outlawing matters of state law and from prosecuting the same crime that the states have adjudicated."

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Pukka Luftmensch
on December 09, 2018 at 10:29:54 am

Genesis confirms that every human person, from the moment they are brought into being, in The Image and Likeness of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption.

“Let Us Make man in Our Image.”

“Do not think that I am come to destroy the law, or the prophets. I am not come to destroy, but to fulfill.”

Christ Has Shown us, through His Life, His Passion, and His Death On The Cross, that No Greater Love Is there Than This, to desire Salvation for one’s beloved.

“I am Alpha and Omega, the beginning and the end, saith the Lord God, who is, and who was, and who is to come, the Almighty.”

It is not possible for a human person to conceive a son or daughter who is not a human person, which is why we can know through both Faith and reason that denying the personhood of the son or daughter residing in their mother’s womb, is a lie from the start, as well as an error in both Substantive and Procedural Due Process Law.

“IN GOD WE TRUST”, is an affirmation of Divine Law. God, The Most Holy & Undivided Blessed Trinity, Is The Author of Love, of Life, and of Marriage, as confirmed in Genesis.
Our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, is endowed to us from God, not Ceasar, John Locke, or King John.

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Nancy
on December 09, 2018 at 11:09:20 am

Is yours really an attempt, Jonathon Rowe, to make an intelligent point about the role of Christianity in the Founding or even to suggest that the Founders' constitution embraces abortion on demand?

I think not, but rather that you are displaying, under a pretentious posture of superior learning, petty and smug contempt for Nancy's commendable piety.

Mockery will get you nowhere.

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Pukka Luftmensch
on December 09, 2018 at 12:01:00 pm

Good points, Pukka,

"[T]he enormous costs of discarding it may offer a reason to maintain the overly expansive (precedential) view.” -

Indeed, by perpetuating bad precedent, the costs exacted from the rule of law, fairness and equity under it, and commitment to the Republic's founding principles, by far exceeds that of discarding it.

While every law and every judgement results in winners and losers, (i.e. Commerce Clause), and while it may be tempting to say, "they're lawbreakers anyway, who cares if they suffer twice" (i.e. double jeopardy/double sovereignty) , it might be argued that perpetual enforcement of bad precedent creates a minority class of "losers" who are systematically and factionally oppressed under the law by the "silent" majority (acquiescent citizenry) and by a vocal minority (abusive prosecutors).

“Restore federalism, bar the feds from outlawing matters of state law and from prosecuting the same crime that the states have adjudicated.” -

Additionally, bar the ability of the Feds to link cooperation to allocation of block grants - once the states no longer have to worry about biting the hands that feeds them, they may be more apt to slap the hands of the long arm of the Feds over its unwelcome advances; preferably with a nun's ruler - at least that taught you to keep your hands to yourself, something #metoo can get behind. Besides, what State’s Attorney General running for Governor likes it when the U.S. Attorney General running for President steals the spot-light?

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Paul Binotto
on December 09, 2018 at 12:15:16 pm

You are back, Binotto.

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Pukka Luftmensch
on December 09, 2018 at 12:20:18 pm

"...preferably with a nun’s ruler – at least that taught you to keep your hands to yourself, ..."

OR

to keep your baseball cards in your desk during history lessons!!!!!

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gabe
on December 09, 2018 at 12:29:26 pm

Ha- yes, that too! Literally the "Rule" of Law that left an impression and stung like heck!

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Paul Binotto
on December 09, 2018 at 14:03:42 pm

And now some words from Abraham Lincoln. i have taken the liberty to de-contextualize this for my own purposes.
Read in a certain fashion it supports the contention of Z, Pukka and Paul concerning predictability combined with my own belief, nay, certainty, that the Crafters expected that the *LIMITED* constitution they envisioned, by virtue of its restriction upon the powers and authorities of the central government would be sufficient to not only assure "predictability' but to make unnecessary any discussion of "non-predictability"
Thus when the laws become innumerable, the law becomes unfathomable. following Wickard, we find, as Lincoln asserts, a veritable volcano of impingements upon the citizenry such that the Federals have occupied the entire landscape.
Given the plentitude of the laws, is it any wonder that a) sufficient laws are available to a prosecutor to permit twice prosecuting a citizen, b) that *co-operative prosecutions have become another quiver in the government's arsenal arrayed against the citizenry and c) given the plentitude, the citizen has plenty to worry about.

No, I believe that the Crafters believed that the surety to liberty they promised would ONLY be possible given a strict compliance with constitutional limits. Sadly, that condition is no longer operative.
Here now Lincoln:

"Many free countries have lost their liberty, and ours may lose hers; but if she shall, be it my proudest plume, not that I was the last to desert, but that I never deserted her. I know that the great volcano at Washington, aroused and directed by the evil spirit that reigns there, is belching forth the lava of political corruption in a current broad and deep, which is sweeping with frightful velocity over the whole length and breadth of the land, bidding fair to leave unscathed no green spot or living thing; while on its bosom are riding, like demons on the waves of hell, the imps of that evil spirit, and fiendishly taunting all those who dare resist its destroying course with the hopelessness of their effort; and, knowing this, I cannot deny that all may be swept away. Broken by it I, too, may be; bow to it I never will."

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gabe
on December 09, 2018 at 14:38:51 pm

Pukka,

Please just read what I say at face value and not impute such things into my comments.

My point is very simple: When I hear the language of "unalienable rights" I hear John Locke and America's Declaration of Independence. Such is not Trinitarian.

Period.

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Jonathan Rowe
on December 09, 2018 at 14:41:37 pm

Pukka,

Please just read what I say at face value and not impute such things into my comments.

My point is very simple: When I hear the language of “unalienable rights” I hear John Locke and America’s Declaration of Independence. Such is not Trinitarian.

Period.

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Jonathan Rowe
on December 09, 2018 at 14:44:05 pm

Nancy,

"In God We Trust" is generic monotheism. It's something Jews, Christians, Muslims, Mormons, Deists and Unitarians can assent to. It has nothing to do with special revelation or the Trinity.

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Jonathan Rowe
on December 09, 2018 at 16:58:17 pm

There is another aspect of stare decisis that justifies a measure of skepticism. There are certain assumptions that are presented in cultural dialogue that an intemperate Court may sanctify as Constitutional principle. One example, fortunately only academic at the moment, was a matter of contention in the state level proceedings of Masterpiece Cakeshop. In that case, the Colorado Court of appeals considered the assertion that refusing to service gay weddings is not identically discrimination against gays. The Court of Appeals decision, in a hopelessly poorly reasoned and activist opinion dealt with this argument perfunctorily, stating that refusing to facilitate a gay wedding was conclusively refusal to provide service based on sexual orientation. It attempted to justify this non-sequitur with the illogical notion that a law regulating wearing yarmulkes would be anti-semitic. It is interesting to note that the British House of Lords, when confronted with the exact issue came to the opposite conclusion: there may be grounds for opposing gay marriage that are not mindless hatred of gay people. This is the better view.

The peril comes when the Supreme Court adopts a debatable assertion of cultural relevance and presumes to decide the matter as part of Constitutional interpretation. Imagine if Justice Kennedy had proclaimed that opposition to gay weddings is discrimination on the basis of sexual orientation. Imagine how this would be used in lower Courts to short-circuit healthy debate and dialogue on contentious matters of cultural and political relevance. Would opposition to female genital mutilation be conclusive evidence of discrimination on the basis of religion?

There are a great many issues that a free society must resolve through vigorous and reasoned debate that the Court may usurp and pretend to resolve with the same sort of inane and sloppy reasoning used by the Colorado Court of Appeals. The Court might, by fiat and magnified by the undesirable effects of stare decisis on cultural and political questions, announce that there is a distinction to made among various semi-automatic firearms such that the ownership of some are protected by the Second Amendment, while that of others is not. The Court may establish, as part of Constitutional jurisprudence the very debatable notion that words can be violence, that "hate speech" is a phenomenon outside the protections of the First Amendment, that biological determinants of sexual phenotype are discriminatory, and that "identity" is a valid basis for differential application of laws.

Stare decisis is not a valid grounds for perpetuating the broad interpretation of the Commerce clause, by which ordinary citizens are unnecessarily vexed by the hubris, incompetence and vanity of Federal functionaries. Stare decisis should not be an obstacle to common sense. We should remember that stare decisis literally means "stand by things decided," and things decided includes things decided wrongly. Bad legal reasoning should not persist simply because it was prior legal reasoning. A more pernicious threat lurks in the potential for things decided legally to be taken as decided politically and culturally as well.

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z9z99
on December 09, 2018 at 17:47:54 pm

I was about to propose, that President Abraham Lincoln rightly be given the honor, (and, thereby also Mr. Gabe, as tribute to their shared great virtue and humility), of having the last words in this discussion.

However, that proposal having been justifiably preempted by the esteemed wisdom of another virtuous and humble commentator, and with solid precedent on my side, it's with greater confidence that I hereby propose that this discussion end with Z.

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Paul Binotto
on December 09, 2018 at 18:16:38 pm

"A more pernicious threat lurks in the potential for things decided legally to be taken as decided politically and culturally as well."

And given both the clarity and explanatory power of Z's comment, I second Paul's motion.

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gabe
on December 09, 2018 at 20:58:05 pm

My apologies for continuing this; however, I had tucked away this link for an appropriate occasion AND i include it ONLY to further the very astute observation of Z that I copied above.

A more pernicious threat lurks in the potential for things decided legally to be taken as decided politically and culturally as well.

https://www.americanthinker.com/articles/2018/12/justice_kennedys_hubris.html

Wherein Justice Kennedy confesses that he decided to "approve" Gay Marriage only because he could not fathom that 100,000 children of such "conjoinings* (sp?) would be left without what he perceived to be adequate protections.

Such is HOW modern policy is decided / mandated AND debate terminated.

It strikes me that Justice Anthony (Oh, Sweet Mystery of Life) Kennedy aspires, unsuccessfully, to deliver the judicial wisdom on offer from Z9Z99.

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gabe
on December 10, 2018 at 08:44:44 am

“...stare decisis may be regarded as a virtue in itself”.

That which is virtuous, is grounded in Truth, not error. Thus stare decisis grounded in grievous error can result in grievous error, especially when that error denies personhood and thus denies that our inherent Unalienable Rights are endowed to us from Nature’s God, The God of Creation, The Most Holy & Undivided Blessd Trinity, which we can know through both Faith and reason, is not John Locke.

“When God Is denied, human Dignity disappears.” - Pope Benedict Christmas Address 2012

Our Unalienable Rights, which cannot be relinguished even if we so desire, are Unalienable because they come from God, with the capital G, The Judeo Christian God, and thus Divine Law.

“Let Us Make man in Our Image.

“God Is Love.” Love Exists In Relationship. Love Is Trinitarian; The Lover, The Beloved, And The Spirit Of Complementary Love Between The Lover And The Beloved.

God is not a separate entity of self love, but An Ordered Communion Of Perfect Complementary Love.
Just as Truth will not contradict Truth, Love wil not contradict Love.

Man was created in The Imago Dei of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption, as a reflection of Love, although not yet perfected, through Salvational Love, God’s Gift of Grace and Mercy. Man was Created to live in Loving communion, in Communion with God.

“Be Perfect as your Heavenly Father Is Perfect.”

If John Locke was the author of our unalienable rights, than woe to us, from The Beginning!

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Nancy
on December 10, 2018 at 08:59:27 am

Interesting addendum to the original commentary, Mr. Gabe!

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Paul Binotto
on December 10, 2018 at 11:41:36 am

“...refusing to service gay weddings is not identically discrimination against gays.”

How could it be when marriage requires the ability and desire for a couple to exist in relationship as husband and wife, and thus be married to each other. To service a wedding between two men or two women would necessarily involve discrimination against being either a husband or a wife, and if children are involved, discrimination against being either a father or a mother.

Marriage cannot in essence be, existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously.

“Justice Anthony (Oh! Sweet Mystery Of Life) Kennedy”, in denying Genesis, denies Divine Law, and thus, by denying The Author of our inherent unalienable Rights, denies both The Spirit Of The Law, and the spirit of our Constitution.

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Nancy
on December 10, 2018 at 21:47:05 pm

Stare Decisis is almost never used to defend a wise decision. Maybe never.

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John Ashman
on December 11, 2018 at 05:32:15 am

This is a very insightful observation and rule of thumb for evaluating a legal argument's strength!

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Paul Binotto
on December 11, 2018 at 08:28:38 am

If, as someone commented, "Stare Decisis is almost never used to defend a wise decision. Maybe never.'' that would suggest that the principle is the refuge of judicial scoundrels. My assertion is supported by the frequency with which, in defending the "right to choose," the Democrat Party raises high the banner of precedent, a flag unfurled, indeed, scorned by the Left until that unique "right" was first fabricated out of whole cloth in 1974.

There was no pattern, no precedent, then from which to cut and fashion the "precedent" of Roe and Casey. Thus, it would seem, that the absence of precedent is an insignificant obstacle to progress when social justice rights are being assembled in the Left's "Rights Factory" yet the ever-so-brief existence of precedent, once fabricated, becomes a mountainous barrier when restoring the lost constitution is threatened.

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Pukka Luftmensch
on November 08, 2019 at 01:33:01 am

[…] Is Justice Kavanaugh Grievously Wrong on Stare Decisis?, Law & Liberty (Dec. 7, 2018), https://www.lawliberty.org/2018/12/07/is-justice-kavanaugh-grievously-wrong-on-stare-decisis [https://perma.cc/FE4C-6HEE]. Though of little solace to Gamble, successive prosecutions are […]

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Gamble v. United States - Harvard Law Review

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