CHAPTER VIII STARE DECISIS THE principle voiced in the maxim, stare decisis et non quieta movereto stand by precedents and not to disturb what is settled-has been known to all systems of judicature. Former judicial decisions as a source of law were recognized as far back as the ancient Egyptians. In some measure this principle operated in the Roman law and is not without force in those modern outgrowths of the Roman system.1 The full development of this doctrine is found in the English Common Law. It is founded on the principle that stability and certainty in the law are of first importance. When a point of law is once clearly decided by a court of final jurisdiction, it becomes a fixed rule of law to govern future action. The certainty of the law is regarded as of more importance than the reason of it. It is better to have a bad law with certainty of its meaning than a good law whose scope of operation is indefinable and unknown. The doctrine of stare decisis is of the utmost importance to the whole Anglo-American system of judica 1 See Harvard Law Review, Vol. IX, p. 31 : Judicial Precedents, by John Chipman Gray. 110 ture. The case system of the study and the practice of law is based directly upon it. It operates strongest where rights of contract or property inter partes are involved. The reason is apparent. When property rights are once fixed, especially titles to real property, they cannot be disturbed without great injustice to those who have based their actions and entered into business relations on the basis of such former decision. Faith in the stability of the law is essential to the health of the business world. Misera est servitus ubi jus vagum aut incertum. The courts are not at liberty to consider cases de novo. On the other hand, the doctrine of stare decisis is much weaker in the realm of constitutional law. This is inevitable. Constitutional law is organic. It grows. It is an expression of the life of the social organism. This phase of the public law cannot be bound by precedents to the same extent as private law. The principle of stare decisis is of peculiar importance in its relation to the operation of the Fourteenth Amendment to the Constitution of the United States. We shall confine our study to section one of that article, the other four sections being now possessed of little or no vitality. It reads as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Now this section does not define itself. Its terminology, although time-honored among people of English stock, is, in its new setting, vague, indefinite, and uncertain. Under our constitutional system the Supreme Court of the United States is the only organ of the government to which the people can look for a definition. Cases under the Amendment began coming before that tribunal as early as 1873, but the Court thought it wiser to leave the definition of the scope and the meaning of its terms to the operation of the doctrine of stare decisis rather than to attempt a definition of the whole provision outright. Thus by the gradual process of judicial inclusion and exclusion it was intended that there should be accumulated in the course of time a long line of judicial precedents based on concrete cases presented for decision, which would in themselves define the terms of the Amendment.1 In adopting this course, the Court followed its usual custom of considering only those points which were properly presented and vital to the issue. In this particular, the operation of the doctrine of stare decisis is reduced to a minimum, quantitatively, because if a case can be disposed of on a lesser point, the greater 1 Cf. Davidson v. New Orleans, 96 U. S. 97, and Holden v. Hardy, 169 U. S. 366. will not be considered. The following extract from the opinion in the Slaughter House Cases1 is an illustration in point: "Having shown that the privileges and immunities relied on in the argument are those which belong to the citizens of the State as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal Government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so." The Court in this case defined neither citizenship in the United States nor citizenship in the States, but declared in effect that in the particular case before it the Federal Government could under the Fourteenth Amendment give no relief from State activity. From the adoption of the Amendment in 1868 to the close of the 1910-1911 Term of the Supreme Court, six hundred and four opinions have been delivered under section one of that article. We have now a line of decisions running back for forty-one years. Has the operation of the doctrine of stare decisis effected a definition of the Amendment? Is its sphere of operation now known? These questions must be answered in the negative. After forty years from the date of the adoption of the Amendment, Mr. Justice Moody, in delivering the opinion of the Court in a recent 1 16 Wall. 78. case, could say: "The Fourteenth Amendment withdrew from the States powers theretofore enjoyed by them, to an extent not yet fully ascertained." In a still more recent case, after five hundred and sixtyseven cases involving an interpretation of the "due process of law" clause under the Amendment had been considered by the Court, Mr. Justice Holmes, in delivering the opinion, said, "What is due process of law depends on the circumstances." 2 We have made but little progress in reaching even a working definition of section one of the Fourteenth Amendment under the operation of the principle of stare decisis. This would be a matter of small practical concern were it not for the fact that the Amendment is fruitful of more litigation before the courts of the country to-day than is any other provision of the Constitution. It is becoming more and more intertwined with the great economic questions of the day. An increasing amount of the time and energy of the Supreme Court of the United States is being consumed in disposing of questions arising under it. What is "due process of law"; what is "equal protection"; what are the "privileges or immunities of citizens of the United States"; what the relations between citizenship in the United States and State citizenship - we do not exactly know. The policy of the Supreme Court is to wait until a sufficient number 1 Twining v. New Jersey, 211 U. S. 92 (1908). |