The Constitution – Bedrock Document or Chameleon [Reader Post]


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

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

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

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

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

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

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

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

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

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

Waite replied:

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

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

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

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

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

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

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

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

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

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

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

0 0 votes
Article Rating
Inline Feedbacks
View all comments

Very informative Mr. Bly, and very timely as well, considering the recent SCOTUS decision that Obama denounced and the sweeping legislation being discussed currently regarding healthcare reform. I took an oath once as a lowly navy enlistee to “uphold and defend the constitution of the United States” (incidentally, the same oath that the President takes), and although I am no longer currently serving, I feel it is my duty as a veteran to continue that oath as long as I am still here on earth. I don’t believe in precedent as the instrument to derive a decision in cases before the court, but in the text of the document, and along with it, the meanings of certain phrases and clauses in the constitution put forth by the architects of the constitution. One might say then that I rely on “precedent”, in reading and understanding the Jeffersons and Madisons of the time and their papers regarding the constitution, however, I would deny that on the premise that those who wrote the constitution best know what they meant in those clauses and it is nothing more than a clear explanation of those clauses and phrases. As such, no where in the constitution does it say that congress can enact such legislation as healthcare reform. If it doesn’t say they can, then by the 10th amendment, they cannot do it, and if they can’t then it is specifically reserved for the states and the people.

Although I’m often critical of the federal courts discovering that the Constitution provides a rationale for the pet cause of the moment, I have to admit that a blend of original intent and stare decisis will guide court thinking now and in the future. The founders did an amazingly good job in framing the Constitution. However, as a self-governing people, decisions will arise repeatedly that will require dependence upon precedent, and that is unavoidable. My own preference is for a less politicized court than we currently have. I believe that once that occurs, the law of the land and common sense will prevail.

The reason that Constitution-ignoring FDR got away with murdering the Constitution is this, IMO. The Founders had established the federal Senate to be the voice of the constitutionally powerful state legislatures in the constitutionally humbled federal government. And given that no Constitution-savvy state lawmaker in his right mind would have given up the voice of his state in the Senate by voting to ratify the ill-conceived 17th Amendment in 1913, I must surmise that mostly rural, constitutionally-ignorant voters had been filling their state legislatures up to that time with lawmakers who were as state-sovereignty-impaired as the voters were.

And what do Constitution-impaired citizens do with their new 17th A. power to elect federal senators? What else, but do an encore performance by filling the federal Senate with lawmakers who were as state-sovereignty inept as the clowns that the people had filled their state legislatures with.

But before we go on, we need to also consider the following. Not only did the Founders make the 10th A. to reserve the lion’s share of government power to serve the people to the states, not the Oval Office and Congress, but Chief Justice Marshall had established the following case precedent, now wrongly ignored, which appropriately prohibits Congress from laying taxes in the name of state power issues.

“Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” –Chief Justice Marshall, GIBBONS V. OGDEN, 1824.

So given the Constitution’s silence on public healthcare, for example, not only is Congress unauthorized to make Obamacare legislation, but corrupt Congress doesn’t have the power to lay taxes in the name of Obamacare anyway.

Getting back to Constitution-impaired voters filling Senate seats with likewise impaired lawmakers, by the time that voters had elected Constitution-ignorant FDR to office, there was evidently no federal senators left who knew enough about state-sovereignty to do the following. The Senate needed to stop Congress from laying illegal taxes to pay for FDR’s illegal social spending programs. After all, given Justice Marshall’s federal tax-limiting precedent, much hard-earned tax dollars should never be leaving the states in the first place. (Did you hear that bankrupt California?)

So regardless that FDR’s puppet justices ultimately helped Congress to overstep its constitutional limits, because of the anti-state sovereignty 17th A., corrupt Congress had long managed to “nuke” the republic by reducing itself to a single mob-ruled, power-grabbing, tax-grabbing house, as opposed to the two houses that the Founders had intended.

What a mess! :^(

The bottom line is that Constitution-defending patriots have big messes to clean up in both their federal and state legislatures in this year’s midterm elections.

I feel that the author has been too facile in his analysis. He sets up what I believe is a false polarity between the originalists and textualists on one side and the stare decisis followers on the other, as if there is a bright line distinction between the two. But these are not really opposite perspectives as they clearly blend into and often compliment each other. Also, the “originalists” and the “textualists” are not precisely in the same camp although their perspectives are similar. Here is how I see them.

The so called originalists argue that the Founders embodied in the Constitution, concepts of government and in particular the relationships between the Federal government and its citizens and between the Federal government and the state governments, that must be applied to controversies whenever such issues arise. In deciding a case, in order to discern the warp and woof of the Constitutional language, resort is had first to the language of the Constitution, as it serves as the foundation for further inquiry. But, there is also resort to the body of contemporaneous documents including the Federalist Papers, the debates at the Constitutional Convention, the writings of the Founding Fathers, the correspondence between Jefferson and Adams, all with the intention of discerning the intent of the Founders as to the original meaning the Constitutional language. Scalia, Thomas, Alito and Roberts are originalists to a large extent.

The textualists may give lip service to contemporaneous materials, but their touchstone is almost strictly the language of the Constitution itself. If the answer can somehow be found within the four corners of the document itself, there is no need to examine anything else. There are no textualists on the Court.

Stare decisis means essentially, “ a thing decided”, and is a principle that pervades American law. The underlying rationale for following precedential decisions is the notion that stability in the law is highly desirable and that appellate resources are limited. There should not be different outcomes on the same sets of facts nor should matters be litigated over and over. Thus, once a matter is determined, it should not ordinarily be revisited. It is very important to understand that this is a concept in appellate law and the primary function of appellate courts is to consider how the statutes, common law, and the Constitution should be applied to the factual determinations of a trial court. Thus, once a statute or the Constitution is interpreted, that interpretation should hold unless or until it appears wrong upon further consideration. . (In most instances, the factual findings of the trial court are binding upon the appellate courts.) Thus, if the factual situations are the same, the legal result should be the same.

In practice, this is by no means a rigid rule. Appellate courts routinely distinguish between the subtleties of differing factual situations and if the majority feels that a different result is warranted, the outcome will be different even if the court doesn’t overrule a precedent. If the court feels that the prior decision was incorrectly decided, it will reverse the prior ruling. While intermediate appellate courts (Courts of Appeal rather than the Supreme Court) feel bound to a greater degree by stare decisis, the Supreme Court always considers itself free to reconsider precedents. As an example, Brown v. Board (1954) overruled Plessey v. Fergurson, which had been the law since 1896. Clearly, precedent didn’t “trump the text” (as the author argues) in Brown, and frankly, I am not aware of any instance where that was the case.

Regardless of where on the particular spectrum a particular Justice resides, whether an originalist, or a more results oriented Justice like Ginsburg, there has been and should be considerable respect for stare decisis. Hence, the polarity that the author sets up is not real. There is only a question whether in any particular instance, individual Justices and/or the majority of the Court feels that an issue once thought to be settled, should be re-examined, or whether it is a matter of first impression that should be taken up by the Court.

It is useful to understand that the jurisdiction of the Supreme Court is almost entirely discretionary. That means that there is no automatic right to appeal to the Supremes except in a few situations not pertinent here. Each year or session, the Court receives in excess of a thousand petitions for review yet about a hundred are accepted for decision. The Justices are constantly reviewing Court of Appeals decisions as they proceed with matters before them and consider petitions for review (certiorari). As they review these petitions year after year, the Justices develop an excellent feel as to what is fomenting within the law in the lower courts. As they see inconsistent decisions as, for example between the Courts of Appeal in different circuits, they will grant review to resolve those differences. If they see an intensity of litigation over some issue that could be calmed by a decision from on high, they may also grant review.

As a final matter, it demeans the intelligence of some awfully smart people to claim that the decision in the corporate free speech case turned solely on a headnote in that old chestnut of a case, Santa Clara v. Southern Pacific. The concept of treating a corporation as a “person” was well embedded in English law even before the Constitution was drafted and certainly the Framers were well aware that in many, but not all instances, a corporation was given “personage” by both statutory and common law. Uncontroversial examples are the right to own, sell and transfer real property, the right to incur debts with the concomitant obligation to repay, the right to bankruptcy, the right to contract generally. Interestingly enough, in the Citizens United v.FTC case (which is the corporate free speech case), the Court relied on numerous precedents that held that the First Amendment applied to corporations.

What the Supreme Court did in Citizens United was to recognize that if a corporation is to be treated as a person for regulatory purposes, a concept that pervades American regulatory law, it should have the concomitant right to express its positions by way of speech just as would be the case of a natural person and hence, the application of the statutory prohibition on such corporate communications would have a “chilling affect” on political discourse. The argument that the economic power of corporations as reflected in their “speech” would overwhelm the power of individuals was rejected on the simple grounds that there were offsetting empowerments as manifested by the very wealthy (George Soros, anyone?) or the collective efforts of organized individuals. (“Distinguishing wealthy individuals from corporations based on the latter’s special advantages . . . does not suffice to allow laws prohibiting speech.”) So, rather than being driven by stare decisis, the decision was clearly driven by originalist notions of the scope of the First Amendment. In other words, that the government has no business regulating free speech. (Incidentally, the Court overruled Austin v. Michigan Chamber which held that political speech could be banned based on the speaker’s corporate identity, as well as McConnell v. FEC which had upheld a similar limitation in the statute in question in reliance upon Austin.) Thus, stare decisis is not the culprit here. As Justice Roberts said in his concurring opinion, “Stare decisis is instead a ‘principle of policy.’ When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. . . . stare decisis is not an end in itself. It is instead ‘the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” These quotations succinctly explain the stare decisis doctrine.

I apologize for the both length of this post and the fact that it is wordy. I hope it is not over technical. I felt that this is an important enough subject that it required a prompt response. Also, I am buried in a tax audit and time is much constrained.



I took a course on Administrative Law when I was in graduate school. The professor was fond of saying, “The Constitution is whatever the Supreme Court says it is.” Double-edged is that sword.

Precedent is fine so long as it doesn’t conflict with the text, but using precedent that conflicts with the text of the constitution should not be allowed.

Not to nit pick on anyone but relying on precedent sets bad precedents, no pun intended. During any one time, the court may be and has been packed with a majority of activist judges who seek to make law, not reconcile(there’s that word again) particular laws within the boundaries of the constitution. Mr Bly is partially right in that using precedent that conflicts with the text of the constitution should not be allowed, but IMO, relying on any precedent is damaging in the long run. I say this because an activist court can overreach, and has before, on decisions and favor greater federal government power than was intended and/or spelled out within the text. As future courts decide on similar cases, relying on those precedents at best doesn’t allow for correction and at worst, sends the country farther in the wrong direction.

The sad thing we have today is that to many in this country believe that the Constitution is a living document. That way they can interpret it to fit their agendas. The SCOTUS has been shirking it’s responiblity for years, by allowing congress to enact laws the are clearly unconstitutional and doing nothing until someone challenges them. Until we have a Constitutional Government, like the Constitution calls for, we will continue down this road to destruction.

In regards to a corporations right to free speech, because they are regarded as “persons”, was probably not the best example. I have an issue with an unfettered application of “personhood” to a corporation and the subsequent bestowing of rights meant for citizens based on this concept. Yes, corporations need to be able to do many of the things that an individual does in the course of its day to day business, however, they are not living breathing people and as such there should be much scrutiny given by our legal system each time they attempt to assert rights that belong to flesh and blood persons.

There are subsequent decisions that have been based on the precedent of personhood established in Santa Clara County vs Southern Pacific Railroad. What I find most interesting is that it was the clerks summary in the headnote that is used as precendent in those subsequent cases. As I have stated above, personhood, for a corporation should be reviewed each and every time to see if the application of such status is truly warranted.

When they start looking for hidden meanings and conjectures in the Constitution like some kind of legal gnostics rather than just reading it as a document that was to instruct and inspire Americans forever is the point we run into trouble. It was in the prenumbras (clouds and shadows) of the Constitution that Roe V Wade was hatched and over 40 million dead children later we are still trying to milk garbage out that document that simply isn’t there. The truth is that when you fiddle and tweak around on a document that is vital to our national conscience and direction, innocent people die. First the young and innocent, next the old and infirm.

i am wondering how in this new age of tecknology a government can easyer work around the oldest and most precious laws made by the foundings fathers to imply new laws or is it harder to do since this new tecknology was not created in thoses times? bye

Excellent post. Thank you for the details. I was never interested in history before Jan 20th 2009, but now I can’t get enough of it. It’s fascinating to see how things work and why, and how the law of the land gets circumvented & convoluted. Thanks again.