The Past: The Things We Thought We Buried Rule Us From the Grave

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The Past: The Things We Thought We Buried Rule Us From the Grave

By Joel Levin

The sins of Donald Trump are, and have been without his many daily additions, too long to list. One of these often left in mentioned is that, by his very presence and the words he then utters or tweets, he causes other Republicans, even Republicans otherwise intelligent, reasonable, and careful, to say things that are ridiculous.

Take Senator John Cornyn of Texas, until this week the Senate Majority Whip, arguing against impeaching Donald Trump now that he has left office. Cronyn said: “Keyword is ‘precedent’. If it happens to President Trump, the precedent will be applied to future, former Presidents. A bad idea.” Presumably, the implied threat here is that impeaching Donald Trump after he has left office could lead to the imminent cascade of impeachments of other former presidents in two years or four years if the Republicans capture the two houses of Congress.

One wonders who he is talking about as to the former presidents. Trump aside, there are exactly four: Presidents Carter, Clinton, Bush, and Obama. Under the 22nd Amendment to the United States Constitution, Section 1: “No person shall be Elected to the office of the President more than twice.” That means there is nothing that impeachment, except for removing a few trappings of office (pension, travel allowance and Secret Service, all relatively small and small-minded matters when compared to the cost and monumental nature of the Senate shutting down to conduct a trial), can do to the two-term Presidents Clinton, Bush, or Obama. Perhaps it was the 96 year-old, single-term President Jimmy Carter, too senior and frail to make it to the Inauguration, resting at home, that Cronyn had in mind, although that seems remarkable. President Carter has expressed no interest in engaging in a long and grueling campaign four years from now when he is 100 (or 104 if he waits out his fellow Democrat, President Biden). But should Senator Cronyn’s idiosyncratic worries concern us in other ways?

We might want to look more closely at the Senator’s statement – not for the worry that apparently keeps Senator Cronyn up at night, that of sending a centenarian to the White House – but for his use of the concept of precedent. We see that type of concern everywhere in our political discourse, statements about setting a bad precedent for some future event or decision, where the action today is attacked not only or not necessarily because it might be a poor one. It might even be considered to be reasonable under the circumstances now surrounding it. Rather, the criticism lies in a precedent’s potential use in the future in some disadvantageous manner or disagreeable cause. Who would want to set a bad precedent? Who would want to do something today that would cause things to be worse tomorrow? Who would want to make it easy to repeat a mistake knowing one already had been made?

I want to suggest this worry is overblown. Moreover, it is a flight from rational decision-making now for those invoking the problem of choosing a bad precedent and in the future for those who feel compelled to follow bad precedent. In short, the precedent, when seen in the environment it is most at home – the courts of law  – is a reasonable tool for solving problems, as long as we see it as just one tool in the proverbial toolbox and not some buzz saw that severs every other potential solution.

Let us begin that with a couple of the defining aspects of the idea precedent. First, precedents should never be considered to be rigidly compelling. Just because something happened in the past, happened before or once happened is not itself a sufficient reason for it to happen again. The past is full of bad decisions, bad outcomes, mistakes, missteps, and things to be avoided. In fact, shedding, not following, the bad examples of the past is often the morally compelling and politically necessary thing to do.  Our American political past is replete with examples of confiscation of Native American lands, slavery and indentured servitude, restricted or prohibited voting, imperialist aggression, racial segregation, economic deprivation, corruption, monopolization, and discrimination against any number of groups based on race, religion, gender, political beliefs, and almost anything else people could and did think up. There is certainly no reason to repeat them. Suggesting, as spokespersons for the Trump Administration did at certain times, that locking up outsiders because of the Japanese-American internment camps precedent would justify locking up asylum-seekers  (notoriously including children) at the Mexican border is just a single and simple, if pernicious, example of the use of precedent in this way.

Of course, there is much to celebrate in American history – from democracy to civil rights to free enterprise to (often) welcoming immigrants, to creating prosperity, establishing enshrining the rule of law and promoting self-reliance – but that celebration hardly needs to rely on precedent: it can stand on its own two feet as something worth following and repeating as right and good in itself. That is, we typically need not pay homage to precedent in order to do the right thing, only to do the right thing itself. Given that the right thing hardly requires further justification, certainly not from precedent, we ought to be skeptical of its use in service to the wrong thing. Precedent can be useful, but should never be compelling. Otherwise, we become subject to the problem set out by Faulkner in viewing the Old South: “The past is never dead. It’s not even past.”

Second, what counts as precedent is not only problematic, it’s often the entire game. Situations, events, persons, places, and legal dilemmas can certainly share similarities, but they are unlikely to be identical to each other in any given situation. Their points of comparison can diverge in just the way that the decision-maker, that is the person who may or may not want to apply precedent, finds problematic. Was the emergency situation found by this precedent similar to the one now facing us? How similar is the injustice towards a specific person or group of people? Is the economic downturn here and now similar to that economic down turn there and then, to another economic downturn, or to no particular economic downturn? We often see precedents as contentious in their comparisons, where the points of contention are just those that we need to solve in deciding whether or not to go with our previous example, that is to go with precedent. As controversial as are their comparisons, the points of difficulties are just those that we need to solve in deciding whether or not to go with our previous example that is to go with precedent. Just the fact that one of them occurred first is enough to make things different. Let us not repeat our mistakes or fight the last war or think President Hoover’s backward-looking austerity would solve the (or any future) Depression.

That said, we are not unskilled in figuring out when we might not want to use examples of what came before us. Let us return to the impeachment problem Senator Cronyn presents. Two potential precedents. First, in the initial Presidential impeachment trial, that of Andrew Johnson, President Johnson survived conviction by a single vote. That vote is generally credited to Senator Edmund Ross, lauded for his principles, famously, in a chapter in John F. Kennedy’s work, Profiles in Courage. The truth of the matter apparently, and the precedent of the matter realistically, is that Johnson supporters set up a $150,000 slush fund for the benefit of Senator Ross. Should we say that bribery is a precedent for operating an impeachment trial? The second potential precedent for impeachment comes from the trial of the Secretary of War in the Grant administration, William Belknap. Charged with “baselessly prostituting his high office to his lust for private gain”, Belknap resigned shortly before the vote to impeach in the House. Nevertheless, the House impeached anyway, and the Senate conducted a trial and took a vote which, although he was acquitted, by its nature indicated that one not in office could nevertheless be impeached and tried.

What does it mean to say that either of these might serve as a precedent? Primarily, it means that we are to take them into account in our future decisions. But, of course, we do not, under any circumstances, wish to take into account the habit of receiving bribes, a habit perhaps endemic to 19th century politicians (and others), while we may want to consider closely the precedent of trying others who have left office. Precedent then becomes something like a metaphor, useful as it is closer to or better resembles the subject, suggestive at some distance, annoying and misleading as that distance grows greater still. But the defenders of precedent want more. They want it to become something like a rule, something of the sort that, unless there’s some very good reason to divert, it generally is to be followed. Here, they look to the law, that great morass of precedent, for encouragement.

Precedent is a many-headed monster, slow-moving but deadly, at times all-powerful, at times surprisingly easy to kill. The separate but equal doctrine that provided the legal justification for segregation once dominated American politics from Plessy v. Ferguson in 1896 until its overthrow early in the Eisenhower Administration. Then, suddenly and with a single elegant and unanimous opinion, the 1954 decision of Brown v. Board of Education, ended it, leaving it never to be heard from again. A few years later, the dozens of statutes and thousands of cases barring all types of interracial marriage and liaisons came to a similar sudden and irreversible end in Loving v. Virginia. I want to suggest two principles and one dodge that governs legal precedent. They are typically unstated, below the surface, and even avoided at all costs by the too often mediocre thinking that characterizes appellate lawyering and the appellate judiciary.

The dodge first. Legal precedent at its best serves one of the primary goals of justice, treating like cases alike, and according to Justice Lewis Powell, has the secondary and related goal of ensuring we are a society of laws, not men (and women, although that addition would not necessarily come to Justice Powell, who in the Frontiero v. Richardson case thought that equal protection is an issue best deferred. The year was 1973). It is the second goal we need to understand first.

Legal justification, not unlike justification elsewhere, comes in two large flavors: arguments from authority and arguments from reason. Saying something is so because some person, writing, ideology, creed, religion, or other source deems it to be the case is an argument from authority. Analyzing whether it might be true or just or right or worth following would involve arguments from reason. What Justice Powell wrote, in an attempt like so many advocates of precedent, was an attempt to finesse the two. Precedent here is referred by its legally more pretentious and obscure name, stare decisis (Latin for standing with the thing decided). “Elimination of constitutional stare decisis would represent an explicit endorsement of the idea that the Constitution is nothing more than what five Justices say it is. This would undermine the rule of law.”

We need to be clear here. Stare decisis, precedent, some decision from the past: these are arguments from authority, the authority of the past of the precedent. They are not arguments from reason. They do have the feature of taking the decision away from the decision-makers, and if stripping those decision-makers of the right to make a decision is a good thing, then we are advantaged by precedent. However, whatever limiting precedent means, and contrary to Powell’s straw-man, no one wants to “eliminate” it. Its reform does not spell the end of the rule of law. It might mean the end of a certain kind of rule of law, one where the flexibility to revise opinions, to meet new problems, to recognize unrecognized rights, and to account for new interests are less impeded, but it is not, by any stretch of the imagination, the end of the rule of law. Let us take a brief look at two of the masters of legal precedent in the last thousand years of Anglo-American history, assess when and where they decided to jettison precedent, and ask why they did so. We can then return to Senator Cronyn’s anxiety.

The two masters and the two issues they faced: religious persecution and product safety. First, William Murray, Lord Mansfield, Chief Justice of King’s Bench, the most important court in Great Britain. In 1776, the case of Foone v. Blount came before him. While the case is impossibly complicated, as only medieval English property disputes can be so impossibly complicated, it essentially Involved a will that attempted to leave Protestant property to Catholics, something illegal in England at the time. The will attempted to circumvent that law by having the property sold and the proceeds delivered to the Catholics. While the discrimination based on religion at issue here is in every sense indefensible, the justification for the law had to do, to some extent, with anxiety about a potential invasion by Spain (consider the Spanish Armada) and the fear that Catholics would take over the British government. The attempt to keep real estate, and the wealth and titles that accompanied it, out of their hands was part of this power-play. “Upon no other ground can can they be defended.”  However, by this time, Spain was in decline, English Catholicism was a less than threatening minority, and the reasons for the rule had changed. In fact, they had largely disappeared. However, the precedent blocking the property transfer remained, and even this clever avoidance of it was clearly improper. That said, Lord Mansfield disregarded the precedent and awarded the proceeds to the Catholics. He basically held that when the reason for a rule disappears, so should the rule. Precedents are only as good as the logic that gave rise to them originally, and when that goes, so should the precedent. Mansfield closely considered precedent – that is why he needed to analyze its historical roots – but found two persuasive reasons to avoid it: a precedent was only as good as the reasons behind it and any precedent ought to be treated with great skepticism when it impinges on fundamental moral rights. We might glance at the thinking of Mansfield’s contemporary, the anonymous pamphleteer Junius, who wrote “One precedent creates another and they soon accumulate and constitute law. What yesterday was a fact, today is doctrine.” A somber assessment.

The American Justice Benjamin Cardozo and dangerous products next. MacPherson v. Buick involved an accident caused by a defective wheel that came with the car. Protection for defects only ran between the seller and the buyer, and then only if the seller did something negligent. Here, Buick sold the car to a dealer and the dealer sold it to Mr. MacPherson. Buick owed a duty to the dealer, but the dealer wasn’t injured. The dealer owed a duty to Mr. MacPherson, but the dealer wasn’t negligent. Thus, Mr. MacPherson was out of luck. Again, the law here was a bit more complicated, but essentially the vehicle law arose from rural precedent when blacksmiths sold sulkies they made to the local farmers governed. Third parties were not involved. Moreover, the precedent was vast. Cardozo, though, would have none of it. “Precedents drawn from the days of travel by stage coach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be”. So began the protection from tainted drugs, asbestos, unsafe food, dangerous machinery and almost everything that we make that fills enriches but endangers our lives. Cardozo essentially drew on two reasons to disregard precedent: respecting the changing needs of a civilization and the economic movement away from of buying from the manufacturer directly, with a ready ability to inspect and understand the product, in an era when that no longer applied. The analogy was broken, the fit disappeared.

We can see then that even when precedent is returned to its most receptive home, that is, the law courts, and it is celebrated as an essential part of the rule of law – where it is meant to allow like cases to be treated alike – there can be persuasive reasons to ignore it. Four such reasons are set out by Mansfield and Cardozo: the original basis for the precedent has evaporated, the precedent operates harshly on individual rights, the changing needs of civilization requires a reappraisal of the precedent, and the analogy that supposedly made something a compelling precedent is, in fact, not quite analogies at all. These two judges present a roadmap as to when we might accept an argument from authority and when we should rely solely on reason.

How, then, does Cronyn’s argument, or perhaps his anxiety, fare? What happens if impeachments become easier, more common, more of a threat to former federal officeholders – Presidents and Vice-Presidents (the impending fate of Spiro Agnew if he had not resigned in 1973, before pleading no contest to a federal felony), Cabinet members and judges – because of the Trump impeachment? Not much, if the four principles articulated by Mansfield and Cardozo are employed. Do the original reasons for impeachment remain? That is, is it a good reason to impeach an official for the charge, if proven, of “incitement of insurrection”? Or having “threatened the integrity of the democratic system, interfered with a peaceful transition of power, and imperiled coequal branches of Government”? Given the necessity of the House and the Senate to protect themselves and their members from bloodshed and destruction, and to protect the country as a democracy, it would be difficult to criticize the basis of the Trump impeachment on these grounds. As to implicating a fundamental right, as the Foone case implicated the right of Catholics to own property, the only rights here would be of former officeholders charged with a serious felony from serving again or drawing their pension, expenses and protection any longer. One hardly counts as a basic right having a pension, Secret Service protection or travel expenses, so the right is just the further holding office. However, we hardly think that fundamental, particularly when measured against a felony involving the existence of the democratic process.

Then, to Cardozo’s reasons. Is the original precedent something that we might want to give up for the changing needs of civilization? That is, will there be a time when American civilization will no longer care about the safety or integrity of the two Houses of Congress, or the popular vote of the American electorate? This would be something difficult to envision as arising in the short or even the long run, so it need not concern us further. What then about a situation where the appropriateness of the analogy is questionable? That is, we might think that the impeachment of former officials might be a precedent hauled out only for the most limited grounds, as going after former officeholders has a certain mean-spiritedness and irrelevancy that might be seen, and seen accurately, as a cheapening of the process. If that is what Senator Cronyn meant – that we should be extremely cautious when charging former officeholders when they are no longer in office, in power, or having any authority – he is undoubtedly correct. However, as President Trump has made clear by raising over $200 million available for future campaign use, he may well run again. As the charge against him as a former office holder involves an insurrection that goes to the heart of the American democracy, Senator Cronyn will likely not find application often in the future. If that is not the case, America has bigger problems than the impeachment of a greedy, prevaricating, failed, authoritarian, and disgraced former President. It needs to worry about its existence.