The Unexpected Breakdown of the Common Law System

This article contains commentary which reflects the author's opinion
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An End to “Stare Decisis”?

One of the crucial elements of our national history that is not taught to students in schools is that, by and large, the Founding Fathers still saw themselves as British Citizens right up to the Revolutionary War. In an effort to create a “more fair” society, Washington, Jefferson, Madison, Franklin, and the others wanted to build a Constitution that corrected the problems of British society handed down for centuries by the Magna Carta. As a result, the idea of “Common Law” or the concept of “Stare Decisis” does not appear anywhere in the Constitution. There are several theories on why this occurred, most likely is that our Constitution was based on both British and French concepts and in France Civil Law dominates over common law. However, it was only 15 years after the ratification of the United States Constitution, 26 years after the Articles of Confederation, when a massive blow was struck against the ruling structure of the Republic as the Supreme Court gave itself the power of Judicial Review. This simple case over a commission was enough to rock our Republic to the very core.

On May 14th, the Supreme Court handed down an opinion in Franchise Tax Bd. Of Cal v. Hyatt (2018). This case overturned the ruling in Nevada v. Hall, 440 U.S. 410 (1979) which stated that there is an implied immunity for a state in the Court of another state. This overly “centralized” opinion from 1979 denied citizens of one state the right to sue another state when their rights were breached.  In the 5-4 decision in Hyatt, the conservatives on the Court ruled that one does have the right to sue a state in the courts of another state (though it does not establish jurisdiction, it just strikes down immunity). By overturning Hall, the Court has shown that stare decisis is a guideline, not a hard and fast rule in the judiciary. The activist judges on the Court Breyer, Kegan, and Ginsburg, joined by the more moderate Sotomayor lamented “what precedent will be overturned next” as if the pontifications of the Supreme Court were infallible. This misconception arises from the Marbury case from 1803.

The Marbury Case (1803) was a rather run of the mill case where some overzealous lawyers attempted to use conflation and old British concepts to get their way in the New United States. In this case the Court determined that any case which is “repugnant to the Constitution” is on its face void, not a bad concept; however, the Court extended this idea encompassing that the Court was the sole arbiter in whether a law was “repugnant” to the Constitution, which is not a concept found in the Constitution. The quandary of Marbury v. Madison, therefore, is that since the sole power to declare a law unconstitutional is not solely vested in the Constitution by the Founders AND the concept of 9 (less at the time) appointed judges being the supreme arbiters of rights is on its face repugnant to the Constitution of the Republic, the idea of Judicial Review is, by its own admission, null and void. Thus, the fact that we have ignored this logical fallacy in our court system for 216 years is simply laziness on the part of the people that we cannot allow to continue.

The safe harbor of this poor legal precedent lies in the concept of “stare decisis,” another extra-judicial idea that has been adapted to protect the judicial hegemony in the United States. Once again, on its face it is simple enough- when the facts of the case are the same, then the results of the case should be the same. However, stare decisis has evolved into something much different. The common interpretation is “the laws of the court become common law and are thus as valid as any other law of the land,” which was never the intent of Congress, or anyone outside of the legal community. The nexus created in Marbury allows for the conflation of similar cases to be deemed “same facts” which enables for tangential precedents to be extended well beyond the original intent of the case. By way of example, let us look at the Roe V. Wade Case line and how it evolved:

  1. Convicts cannot be Castrated – Skinner v Oklahoma 316 U.S. 535 (1942)
  2. Individuals have the Right to Contraceptives – Eisenstadt v. Baird, 405 U.S. 438 (1972)
  3. Women have a right to an Abortion – Roe v. Wade 410 U.S. 133 (1093)

As you can see, this is a chain of dubious logic extending from the concept that prisoners should not have their testicles cut off to the idea that a child in the last trimester can be cut to pieces after it is burned alive with saline solution. The problem with the United States legal system is not the law, but the abuse of the law by those who are profiting from its operation.

Stare Decisis is a dangerous concept, mainly because no two cases are the same – there are always differing facts. However, since the Court acts as a semi-mute arbiter until the decision is made, we have a situation where the people who are arguing the cases have the dualistic control over where the law goes. This position means that the appellee will represent her client and the appellant will represent his client, but no one represents the law as it is written or the rights of the other 300 odd million American citizens who are not represented in the courtroom. The argument from jurists is that the Court holds a dual duty to protect both the law and the people, but as we know – no one can serve two masters. This means that in every court case there is a conflict of interest, even if it so small that it is hard to identify.

Further, there is a problematic concept of lawyers being able to “cherry pick” the elements that they chose to bring before the Court. Once again, we understand that lawyers represent their clients and in some cases, the interests of the parties will synchronize to get a decision that benefits the appellee and the appellant but disadvantage others in the subject area or society as a whole. This creates a dualistic system here individuals and companies that do not get the laws that they want from Congress (or the executive order they want from the president) can manipulate the system to create “common law” which is more inclined with their aims and desires. In the age of companies that are “too big to fail” and politicians and judges who are without the fortitude to break up these monolithic companies, our Republic is at a crossroads. On one side we have the freshman class of Democrats who want to end the Republic and create a failing European style Democratic Socialism where rights are at the discretion of the mob and nothing is sacred. On the other side we have a system of judicial activism, also trying to end the Republic, as even members of Congress cry out “it is settled law” over the protestations of the people.

Except for God-given rights, no law is settled in a Republic; Congress is an should always be the arbiter of the law, the Court is merely the interpreter of the law. Remember, as a message to those who cry “it is settled law” the same protestations were heard about slavery, about women voting, and about interracial relationships in this country.  Those who wish to oppress those without a voice will always say that “it is settled law.” To them, blacks were not people; women were not people and love was something that could be adjudicated by the state. Our nation is a nation of limited powers in the government and unlimited potential for the people. Any time the government reaches beyond those limits, we are diminished as a people; as a people we must stand up and defend our rights, celebrating the courts blow against stare decisis and the corrupt system of judicial oligarchy in the United States.

Author Profile

Dr. Christopher W. Smithmyer
Dr. Christopher W. Smithmyer
Dr. Christopher Smithmyer is a writer for NRN, the Vice President of International Affairs at Brav Online Conflict Management, and an Adjunct Professor of MBA Business at Doane University. He is also part of the founding team at BlackWalletLTD, one of the leaders in stable coin 2.0 ecosystem maintenance. Dr. Smithmyer’s focus is international business and finance, along with reviews of board games, weapons platforms, and survival items.