Common Law and American Constitutional Interpretation Introduction



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Common Law and American Constitutional Interpretation


  1. Introduction

  2. Common law legal tradition

    1. Precedent

    2. Common Law Legal Reasoning

  3. Theoretical aspects of American Constitutional Interpretation

  4. Practical aspects of American Constitutional Interpretation

    1. Different levels of scrutiny

      1. Minimal

      2. Intermediate

      3. Strict

    2. The Fourteenth Amendment

      1. The Due Process Clause

      2. The Equal Protection Clause

    3. Constitutional fact finding

  5. Conclusion

A. Introduction


The central question for this essay is to explore the inherent characteristics of common law legal tradition and its influence on the American Constitutional Interpretation. I will first identify the theoretical or underlying theories of Common Law legal system in terms of application of the precedent and the modes of legal thinking. Understanding the sources and the modes of common law legal reasoning will facilitate the comprehension of theoretical and practical aspects of American Constitutional Interpretation. The United States is part of Common Law legal system and American written Constitution and its interpretation is informed by social changes and common law legal tradition. For this reason the need to do some theoretical and practical analysis of common law rule and reasoning becomes apparent.

Despite the fact that there is not agreement among constitutional scholars about any single mode of constitutional interpretation all the debate in scholastic circles squares around the issues: i ) the meaning of words in the Constitution, ii) the intentions of the authors of the Constitutions, iii) precedents set by judges, and iv) value judgments. Apparently, the Common law legal tradition provides answers to some constitutional questions: whether common law implies a judge-made law, and if so whether judges impose their personal values through interpretation which in turn reflects social changes; and whether the judges are given significant discretion by applying the precedent which eventually amounts to judicial law making.

It is important to discern the different modes of application of the precedents and which precedent is controlling or should be distinguished in a given case under the bulk of case law that judges are bound to follow based on the doctrine of stare decisis. Indeed, there are diverse ways of applying the precedent: by analogy, by extracting principles, and through tests and formulas. For example, the statute at hand will be declared unconstitutional if it was done so in another case with the same factual situation. There always can be some differences between the cases but the only ground not to follow it should be ‘an important difference’ between the two cases.

Another way of applying arguments of precedent is tests or formulas. “Such tests or interpretations are supposed to elaborate the meaning or purpose of the Constitutional provision and to provide guidance in deciding subsequent cases.”1 These formulas come not only from the holding of a previous case but also from a dissent, dicta and footnote. However, there should be made distinction between following an analogical argument and formula in some important respects. Hence, applying the formula from a previous case does not necessarily mean that the cases are analogous.2

However the formulas are also subject to interpretation if they are stated in a general language. This means that the formulas can be more elaborated in future cases which can be argued to adjust the constitution to the changing circumstances that in many occasions amount to making a new legislation.3 This issue again leads to the political distribution of power as to how much power should be given judges in this case for applying a precedent.

Thus, in using arguments of precedents judges rely in many respects on their own value judgments. This is unavoidable when judges should decide which similarities or differences are significant to apply the precedent or to overrule it; which general rule best fits the present case; and which formulas apply in a given case. Finally, I will address the issue of constitutional fact finding and its weight in constitutional adjudication. I argue that the outcome of the constitutional cases significantly depend on the weight given to constitutional facts which is far less discussed in academic circles than other constitutional issues.



B. Common Law Tradition
The Common law was to regulate social and commercial relationships and solve disputes by addressing the changes and developments in either field.4 However, the core of common law theory or concept is ‘justice in the individual case’5 that is followed as a rule in later decisions by the court involving similar factual situation through the doctrine of stare decisis. Indeed, the precedent can be argued to have such values as stability, uniformity, efficiency and to some extent preventing the imposition of judicial value judgments. It allows people to know the legal consequences of their actions and thereby makes the legal expectations more stable. Yet Douglas Edlin argues that:

“For the common law, judgments are individual statements of normative evaluation placed within an existing and evolving system, which are claimed as a contribution to ongoing public debate and to the articulation of public standards of governance.”6


Another distinctive feature of Common law that has been topic for ongoing debate among legal and political scholars is whether judges make law which is basically done through interpretation. Cohen argues that judges do make law and rebuts the illusion that they don’t make it. The judge-made law is reflected not only in the common law but also statutes where the decision is significantly affected by the interpretation. A number of issues are regulated by judge-made law as a matter of common law while doubting the real value of the separation of power principle.7 The arguments of opponents of judge-made law would be convincing if the law were ‘self-sufficient’ enough to cover the future unpredictable situations that the legislature did not and could not have foreseen. However, the reality suggests different conclusion when the judge-made law comes into play through ‘finding, interpreting, and applying the law.”8
To find a law as the term itself suggests restricts the power of a judge to make a law but rather to find it. But as it was already mentioned the distinction between finding and making is artificial taking into account the fact that the judges often supply the content of the law by reference to a principle of justice when the issue is not regulated by ‘clear precedent’.9 These principles, Cohen argues, embody both moral and political considerations, though not having binding force by their own; they are transformed to legal rule by judges.10 “A great deal of judicial legislation also takes place under the guise of deciding what is “reasonable” under particular circumstances.”11
Although it could be argued that the cases not covered by clear precedents are very few and the increase of case law will make it even rare this point is defeated by the argument that unsolved issues depend not so much on the bulk of case law but rather on ‘rapidity with which conditions of life are changing’.12 “Moreover, as the number of precedents increases, skilful counsel can and do all the more readily find precedents on both sides, so that the process of judicial decision is, as a matter of fact, determined consciously or unconsciously by the judges’ views of fair play, public policy, and the general nature and fitness of things.”13
Another example of judicial legislation can be found in the decisions based on analogical argument though ‘under the guise of following precedent’.14 Generally, the judges do this under the cover of distinguishing and making exceptions to the existing rule. However, this does not mean that judges routinely change the established law but “when compelled by overpowering considerations and then only in gradual and piecemeal fashion….”15
The most striking characteristics of common law adjudication deserve special consideration: the outstanding place given to reason, the determination of appropriate precedent for the resolution of a case and the use of analogy if the mater is not covered either by statute or precedent. However, it poses some questions regarding the choice made by judges as to which case is similar or different for precedential application through analogical reasoning in a given case as a rule. Are there any standards to regulate this judicial discretion, or whether imposition of judicial value choices is unavoidable?
a. Precedent
Larry Alexander and Emily Sherwin identified four types of precedents or theories how to apply a precedent: 1) The Natural Model of Precedent, 2) The Rule Model of Precedent, 3) The Result Model of Precedent and 4) The Model of Principles.16 Regarding the first approach the application of a precedent includes not only the ‘reasonable expectations’ of the parties in dispute but also the expectations of the society as a whole as a mater of predictability to arrange the state of affairs in line with already decided cases.
The second view of Rule Model of Precedent presents a kind of strict rules that courts are obliged to follow regardless of actual outcome of the case. This is different from the Natural Model in sense that it restricts judges to impose their value judgments through their ‘moral reasoning’ for considering various factors. What judges are supposed to do is to identify the rule from the precedent and apply it without any further considerations.17 According to Larry Alexander and Emily Sherwin the rational for this view is that it enhances the reliance of individuals. The rules extracted from precedent are usually general and can apply to a set of future cases and if judges refrain from moral reasoning and modifying the precedent but rather ‘follow the rule universally’ fewer errors are likely to occur in the adjudication process. This approach suggests that even though in some cases ‘a good precedent’ might yield bad outcome the judges should avoid modifying it because it is not guaranteed that judges will not make it worse.
The next account of precedent was developed as an alternative to the first two theories discussed above. The Result Model approach admits the binding force of precedent with some reservations in terms of differing factual situations. Admired mostly by American Legal Realists this theory suggests that the judges are free to decide on a case that is not analogous to the previous case.18 Thus, the court shall follow the prior cases with the power ‘to modify them by narrowing their scope’.19 For example a precedent involving factual pattern of a, b, c and d will be followed as long as it strictly corresponds to the factual situation of a later case. If the later case, however, faces with facts a, b, c and f the court will narrow the scope of precedent to facts a, b and c and distinguish the case for f.20
Larry Alexander and Emily Sherwin criticize this view because the role of precedent is significantly underestimated.

In fact, however, the reference to rules is misleading because, under the approach we are now discussing, rules laid down in prior cases play in reality no part in the reasoning of later courts. No precedent rule can be at once determinate enough to dictate results and comprehensive enough to encompass all the circumstances of any given dispute. It follows that every new case will present some fact that is not specified by the predicate of the precedent rule and that, accordingly, can serve as a distinguishing fact. If every later court is free to distinguish every precedent rule, then the authority of precedent decisions, if any, must lie in their facts and results, not in any rules announced by the precedent court.21


Larry Alexander and Emily Sherwin argue that employing this approach of precedent can hardly constrain judges in deciding later cases except when the reasons of outcome of the precedent case will be as strong for a later case as it was for the precedent.22 This process inevitably engages judges in weighing the relative weights of facts which in turn poses difficult problems in terms of chosen criteria for measurement. Thus, this model of precedent signifies more the discovered facts and outcomes of prior cases rather than the precedential rule itself.23
The fourth approach of precedent is called the Model of Principles which means that the court facing a problem should solve it by reference to a principle or even conflicting principles extracted by previous decisions. The central purpose of this theory advocated by Dworkin aims to bring coherence and integrity in law by connecting previous and current decisions through a set of legal principles.24 According to this model the judge would utilize ‘moral reasoning’ to arrive at the best possible decision but constrained by coherence that precedent affords.25 Hence, judges employing moral reasoning will choose the most suitable principle among the conflicting principles by assigning relevant weight to them. “Thus, law can evolve with society, but the pace of change is controlled because past and present are linked by common principles.”26

Larry Alexander and Emily Sherwin argue that this approach makes the law ‘less determinate than precedent rules’ which is prone to judicial value imposition both in terms of general and conflicting principles and the best way of application of the precedent is precedent rule method for the reasons mentioned above.

However, Larry Alexander and Emily Sherwin miss the critical point for constitutional adjudication. If judges adopt the precedent rule approach for constitutional adjudication the flawed decision in Dred Scot should have been followed and racial desegregation brought about by Brown v. Board of Education would not have been made. The task of drawing analogies, distinguishing or overruling is not simple task since judges are to analyze a bulk of case law and extract a general rule through the process of synthesis. Obviously not always the judge will be able to extract a single general rule from the group of precedents; and it is quite obvious that there can be many conflicting principles especially in the Constitution e.g. the privacy and free expression and many more principles. Moreover, there is always possibility that the rules may conflict taking into account also the abstract nature of many constitutional provisions.

Judges here are to make value judgments since they should justify their choice on the ground that the other ones were not chosen because of their unreasonable or irrelevant nature. The choice becomes even burdensome when all the principles or rules seem to be reasonable. Thus, not only the precedent rule method alone but also the groups of precedents as a whole cannot always be sufficient source for the judge’s decision in constitutional adjudication.27


Hence, any rule or principle that comes out from a precedent will be elaborated in a process of ‘continual review’ for a number of good reasons regarding its applicability in future cases in terms of factual situations and conflict with other legal concepts and principles. But most importantly, the Court will be concerned to reach a decision that will be good enough to satisfy the demands of “policy”, “ethics”, “justice” and “expediency” for what the law is believed to have been created.28
It is quite obvious that to decide what is fair or just and expedient will often pass on the value preferences of judges. Moreover, there is not any commonly shared or unanimous opinion about justice so far. Dworkin puts it this way: “Justice is a matter of the correct or best theory of moral and political rights, and anyone’s conception of justice is his theory, imposed by his own personal convictions, of what these rights actually are.”29
b. Common Law Legal Reasoning
Melvin Eisenberg in his The Principles of Legal Reasoning in Common Law’ argues that the judge-made law in Common law legal tradition mirrors the moral standards ‘rooted in aspirations for the community’ and legal rules can be justified as long as they comply with ‘social propositions’.30 Eisenberg distinguishes between two types of justifications in legal reasoning—one that justifies the legal rule itself by invoking social propositions and the other justification is invoked by judges regarding the choice of the legal rule for a specific case. Finally, the consistency in legal reasoning rests heavily on ‘social propositions’ rather than ‘formal logic’.31 Formal logic will fail short to provide consistency between precedents for a simple reason that it cannot determine the relevant facts and spot the differences that count for different results.

For the purposes of legal reasoning, two precedents are consistent if they reach the same result on the same relevant facts, and inconsistent if they reach different results on the same relevant facts. What facts are relevant turns on social propositions?32


The argument of social proposition is also true for consistency between the rule and its exception/s. The exception will be consistent with the rule as long as ‘there is a good social reason’ to justify it. Thus, Eisenberg argues that as a mater a of principle not only the rules ‘fully congruent’ but also those that are ‘substantially congruent’ rules with social propositions will be considered as good rules for the sake of consistency. In other words the rule should be consistently applied if it is good enough to reflect social propositions. ‘This principle is descriptive of legal reasoning in the common law, although it is typically implicit rather than explicit’.33
Eisenberg goes on to identify the following modes of legal reasoning that are typical to common law system: reasoning ‘from precedent; distinguishing; by analogy; overruling; from principle; and use of hypothetical’.34
As was discussed earlier the court using the reasoning from precedent basically would choose to follow either ‘the adopted-rule’ or ‘the result-based’ approach.35 According to Eisenberg the difference between these two approaches are as follows: ‘the adopted-rule’ or ‘precedent rule’ approach is concerned ‘what the precedent court said’ whereas under ‘the result-based’ approach the court counts ‘what the precedent court did’.36 Eisenberg prefers the first approach because it provides more consistency and relatively easy to follow than ‘the result-based’ approach because it allows the facts to be ‘characterized at vastly different levels of generality’ and invoke a number of rules from different precedents that will eventually transform the precedent.37
Eisenberg argues that a good example of ‘result-based’ approach was Judge Cardozo’s opinion in MacPherson v. Buick Motor Co.38 The precedent rule to be followed by the court was that the manufacturer of the negligently made product was liable only to its immediate buyer unless the product was a type of some dangerous substance like poison. The court in MacPherson reformulated the issue the other way around. Instead of saying ‘whether a product is of type that is inherently or imminently dangerous’, the court said ‘whether a product is dangerous if negligently made’.39 Thus, Eisenberg argues that instead of overruling the precedent Cardozo reformulated the rule which ‘transformed the previous rule by a radical construction of the precedents’.40 As Sinnot Argues: “One common problem is being unable to find and agree on an appropriate description of the issue in a present case”.41

In General the outcome of the decision will depend on the choice of application of a certain mode of precedent. Eisenberg concludes that: “the availability of a choice between these two approaches might appear to allow courts almost unlimited discretion to establish the rule for which a precedent stands” subject to some institutional and other constrain of “basic principle of legal reasoning.” 42That principle suggests that the court should follow the rule ‘explicitly adopted in a precedent’ if the rule is a good rule to fit the demands of social propositions as discussed above. Thus, a precedent rule cannot be followed in Brown if it does not comfort to social propositions which means that the Court should either distinguish or overrule the case.


The distinguishing mode of legal reasoning is usually employed by the court when the court makes exceptions to the otherwise applicable precedent. Eisenberg argues that the distinguishing mode of reasoning will be ‘consistent’ if it satisfies the following conditions:

  1. “the social propositions that support the adopted rule do not apply to the case at hand,

  2. The case at hand implicates a social proposition that does not apply to the typical case covered by the adopted rule.”43

Eisenberg argues that this mode of legal reasoning incorporates features from ‘adopted rule’ and ‘result-based’ approach in sense that the court does not overrule the precedent but creates an exception that was overlooked by the previous decision, and it does not contradict but goes in line with the precedent rule.44 Thus, if distinguishing mode of reasoning as specified by Eisenberg applied in Brown the precedent vindicating the racial segregation would still be valid unless it is overruled. Deciding whether or not social propositions justify for distinguishing or overruling the precedent leaves substantial discretion to judges.


Regarding the reasoning by analogy Eisenberg contends that it is the ‘mirror image’ of the distinguishing mode of legal reasoning in sense that an exception is made by the court to cover unregulated matter demanded by social propositions. In case of distinguishing the precedent the rule ‘literally’ applies to the case at hand but the social propositions require modification or reformulation to comply with unregulated social phenomenon whereas analogical reasoning implies that the precedent rule is not ‘literally’ applicable. By analogy the court broadens or narrows the rule from precedent to cover the issue at stake because ‘there is not a good social reason to treat the case at hand differently’.45
Another account of analogical reasoning is offered by Gerald Postema. Postema distinguishes ‘classical common law conception’ of analogical reasoning from two other modes of analogical reasoning called ‘particularism’ and ‘rule-rationalist’. Postema advocates the classical mode of analogical reasoning since he argues that particularism and rule-oriented approaches suffer from inherent defects in their methodology. Particularism suggests that the core of analogical reasoning is ‘the identification of shared particular qualities between two cases’ which is done either through ‘intuition’ or ‘disposition’. 46 Postema criticizes this account of analogical reasoning because it fails to offer both valid substantive and methodological arguments in support of this theory. It fails substantively because ‘shared particulars’ cannot yield valid decision unless supported or guided by some general rule that determines the relevant criteria for ‘appropriate action’.
Regarding the methodological deficiency Postema argues that the similarities should not be determined through ‘intuition’ or ‘disposition’ but rather through ‘discursive’ method which is the characteristic feature of classical method of reasoning. According to Postema discursive method means: “Determining relevant similarities between cases depends, in classical common law conception, upon reasoned argument rather than on a feeling or a perception.”47
As opposed to ‘particularism’ the ‘rule-rationalism’ theory of analogical reasoning requires a prior rule to determine ‘relevant similarities’. However, Postema argues that this theory poses another problem. “If the judgment that two cases are relatively similar necessitates a preexisting rule to guide that judgment, then there must also be another rule that tells us which rule to apply when determining the relevant similarity between cases. And this goes on forever.”48 Additionally, the foundation of this theory is based on deductive method—‘top-down reasoning’—which is far beyond the common law analogical reasoning. “The fact that the conclusion follows from premises does not necessarily means that the conclusion is correct….As a result, common law analogical reasoning demands constant evaluation of an argument’s premises and conclusions.”49
Postema offers two levels of classical mode of common law reasoning—analogical reasoning and analogy assessment. By first level of reasoning Postema means the identification of analogues whereas analogy assessment refers to the evaluation of the relevant analogues. These two levels can work together either simultaneously or sequentially. Thus judgments that are supported by ‘articulated reasons’ and arrived at through identification and evaluation are ‘the defining features of the common law method of analogical reasoning’.50 Hence, in order to treat like cases alike one should determine ‘the existing category of like cases, the relevant criteria of likeness in a given case, and a proper method of articulating likenesses’.51
Thus, analogical reasoning is invoked by judges when the mater is not covered by the applicable law. In this case the reasoning that is employed to yield a decision can hardly be described as deductive or syllogistic but rather it is about identification of relevant similarity which ‘necessarily involves advertence to factors of justice and social policy’.52 The judges in many cases are guided not simply by the logic or syllogistic form of reasoning but clues to the decisions are provided by the judges’ experience and ‘necessities of the time, the prevalent moral and political theories’.53

Julius Stone argues:

“For the working out of legal rues, as we see it in the history of the common law, is not merely a result of deductive techniques as applied to existing principles of law. It is rather a continuous creative adaptation of the law to changing social conditions. In this adaptation, of course, deduction from existing principles of law plays some part, but deduction from non-legal premises found by judicial experience, and choice among competing legal principles and non-legal premises, or choices within a range of indeterminacy, play far more decisive ones.”54



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