Stably starting down the slippery slope

Julian Sanchez has an interesting analysis of Kelo and Raich in Reason (via The Agitator). He basically argues that the doctrine of stare decisis (that court cases are based on previous cases) can lead, via a slippery slope, to results quite different from the original and more obvious intention.

The point of stare decisis is to give some stability to the judicial system - if rulings are compatible with past rulings, then we have a good idea what interpretations to expect. The problem is that a series of rulings can move incrementally further and further from the actual original meaning, with the end result of a ruling that would never have been made based only on the original document. So the attempt at stability in the short-term can actually lead to wide deviation in the long-term! It's an interesting example of how complicated it is to design legal systems, where unintended consequences are rampant.

But go read the piece, he says it better than I do.

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It's not power that corrupts

It's not power that corrupts in the case of the SCOTUS; it's good intentions. As Scott says, it's not "small steps" away from the status quo that have killed liberty. It's small steps almost all in one direction. This is not a random walk; in that sense the "heap of sand" analogy is quite misleading.

I also think that analogy doesn't map that well in the granularity direction. There may be 6 or 10, or maybe 20 decisions that have lead from the initial version of ED to Kelo. Reading over the ones alluded to in article, I can make an argument on practically every one that it is too far, that it is ED abuse. They aren't that granular. Whereas I don't have an argument that N grains of sand is not heap whereas N+1 is.

I think he's right, but I

I think he's right, but I think it's pretty much common sense, too. I mean, that's what we all thought had happen, right?

One factor that is worth concentrating on is, what is pushing the doctrine in specific directions? It's true that stare decisis keeps the doctrine moving in small incremental steps -- but prima facie, the doctinre could just as easily have moved back to a more libertarian state: i.e. a more restrictive commerce clause or public use clause. The answer seems fairly clear: Lord Acton's famous, "Power tends to corrupt," but it's still worth pointing out.

I think we can also construct an interesting argument for minarchy from this as well. Let us take it for a fact that governments move towards greater centralization, inevitably. Even if so, there do seem to be factors that affect that movement, and one of which, I suspect, is the founding document: the Constitution. We had a remarkably constrained Constitution, and so our government grew rather slowly (I'm guessing -- does anyone know of any comparison?). If such is the case, it would stand to reason that with a better prepared Constitution, with even more restrictive, clearer phrases, we could create an even slower growing government. That may be superior to anarchy, if anarchy has enough detriments of its own.

Of course that may just be wishful thinking as well. After all the Articles of Confederation seriously confined the Federal Government, and they were discarded in a heartbeat.