“But it has to be a heap now.”

Yes. That’s It Exactly

I don’t have to work at this, people send me stuff. Mike from Feces Flinging Monkey most recently has been pointing me at the most interesting things. Today’s is a piece in the current Reason Online by Julian Sanchez concerning my most personally hated latin phrase, stare decisis – defined by Webster’s as “a doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice.” Mr. Sanchez’s piece is entitled A Heap of Precedents: Slippery slopes, stare decisis, and popular opinion. Mike found it through the blog A Constrained Vision, which looks interesting in itself, as the author draws it’s title from a Thomas Sowell quote. Anyway, the part(s) I found pertinent were these:

There’s a famous philosophical puzzle, originally attributed to Eubulides of Miletus, known as the sorites paradox or heaps problem. It goes like this: Two or three grains of sand obviously don’t constitute a “heap” of sand. And it seems absurd to suppose that adding a single grain of sand could turn something that wasn’t a heap into a heap. But apply that logic repeatedly as you add one grain after another, and you’re pushed to the equally absurd conclusion that 100,000 grains aren’t a heap either. (Alternatively, you can run the logic in the other direction and prove that three grains of sand are a heap.)

It’s not a terribly deep puzzle, of course: It simply illustrates that some of our everyday concepts, like that of a heap, are vague or fuzzy, not susceptible to such precise definition. Try to define such concepts in too much detail and absurdity results.

The problem is, concepts like “interstate commerce,” “public use,” “unreasonable search,” and “cruel and unusual” are similarly fuzzy. And stare decisis, the principle that cases are to be decided by reference to previous rulings, means that the Court’s interpretation of those rulings looks an awful lot like a process of adding one grain at a time without ever arriving at an unconstitutional heap—an instance of what law professor Eugene Volokh has called an “attitude altering slippery slope.” Jurisprudence is all about distinguishing cases, explaining why some legal principle applies in situation A, but not in apparently similar situation B. But if the grains are fine enough—the differences from case to case sufficiently subtle—plausible distinctions become harder to find.

The core of the argument in the dissent, on the other hand, looked quite different, going directly to the Fifth Amendment’s stipulation that property be seized only for “public use”:

[If] predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.

The dissent in Raich was heavier on citation, but at its core seemed similarly motivated by a big-picture concern that the ruling “threatens to sweep all of productive human activity into federal regulatory reach.” Both dissents, in other words, step back from the meticulous addition of granules to exclaim: “But it has to be a heap now.”

These two decisions prompted outrage not because either was a radical departure from precedent – neither was – but because they called attention to just how many grains of precedent had been piled atop the terms “public use” and “interstate commerce,” reaching so far from the common-sense meanings of those terms as to seem preposterous if one is only eyeballing the heap, rather than attending to the process.

(That’s the heart of it, but read the whole thing.) Worse, when stare decisis builds upon previous bad decisions – and no one denies that the Court has made some real stinkers over its history – then we’re not talking heaps of sand anymore. We’re talking heaps of shit.

Raich, and to a much larger extent Kelo, both “contravene the ordinary principles of justice” without a doubt. That a majority of the Court wouldn’t recognize this is what angers me more than anything. Perhaps they believe Nancy Pelosi‘s right, and their decisions are “almost as if God has spoken” so they needn’t bother themselves with “eyeballing the heap.”

Thomas, on the dissenting side in both Kelo and Raich, is absolutely right: “Something has gone seriously awry with this Court’s interpretation of the Constitution.”

And achieving divinity ain’t it.

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