A Heap of Precedents

Slippery slopes, stare decisis, and popular opinion


Last week, on the heels of the decision in Raich vs. Gonzales giving federal drug laws precedence over a California medical marijuana statute, the Supreme Court ruled in Kelo v. New London that a home owner has no rights that a city planner is bound to respect.

Neither ruling was particularly surprising to longtime court watchers—the New York Times praised the court in both cases for holding the line against conservative extremists. What was surprising, however, was how unpopular both proved with commentators of all ideological stripes beyond such bastions of elite opinion. Libertarians and conservatives were predictably outraged, but many on the left seemed equally horrified.

Former Milwaukee mayor John Norquist, a liberal Democrat, fumed that Kelo, which held that the city of New London's seizure of homes for a tax revenue- and job-generating office park constituted a "public use" of land, was a "shocking" decision that "opens [eminent domain] up to virtually anything." The Washington Monthly's Kevin Drum, long a critic of the use of eminent domain to aid private development projects, couldn't work up too much indignation, but only because eminent domain abuse has been going on for so long that Kelo seemed a relatively small drop in the bucket. A writer for the liberal blog TPM Cafe, noting that the Kelo majority comprised all the Court's liberal justices, reported feeling as though he were "in Alice of Wonderland: white is black and black is white and I am livid."

Liberal reactions to Raich, which held that federal power over "interstate commerce" extended to homegrown marijuana even when states permitted its medical use, seemed more favorable: The New Republic's editors, sounding a similar note to the Times', called it an "uncontroversial application" of precedent regarding the Commerce Clause—precedent that, by broadly interpreting the government's authority to regulate interstate economic transactions, underpins many programs cherished by liberals.

But here, too, there was scarcely unanimity. The Nation blasted the decision, and commenters on the left who weren't animated by a fear that the Civil Rights Act was in jeopardy seemed as prone as those on the right to find it puzzling that the power to regulate interstate commerce extended to marijuana grown within one state for non-commercial purposes.

This doesn't appear to be just the result of sympathy for the attractive plaintiffs in the cases—terminally ill people seeking to ease their pain and working class homeowners expropriated by large corporations. For many liberals also seemed shocked at the majority interpretations of "public use" and "interstate commerce," even though those who argue that neither decision was particularly radical are perfectly correct. Rather, the disconnect in perception may be explained by an ancient Greek thought experiment.

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.

Consider the majority opinions and dissents in these two recent controversial cases. In Kelo, the majority decision is dense with precedent, references to rulings in other putatively analogous cases. It was classic granular logic, carried out by individual steps that all seem reasonable enough. And the progression scarcely seems crazy at any one step.

A road, for instance, is a paradigmatic "public use." But then, what about an irrigation ditch that waters adjoining farmlands? It benefits discrete private individuals, rather than every member of the public, but it doesn't seem mad to say that it sounds pretty much like a road. Often government will provide funding and lease land to a quasi-private entity that runs a museum, under the condition that it be open to the public; does that cease to be a public use because the museum isn't directly run by the government? Is land seizure for a railroad under similar common-carrier regulations a "public use" only if government directly runs the railroad? If not, then what about the seizure of land for the purpose of ameliorating urban blight? The land may be handed over to private developers, but there are other apparent public uses that seem consistent with private ownership. And perhaps the buildings the new private owners erect aren't "open to the public" in the way museums or trains are, but mightn't even more members of the public benefit from the elimination of crime-breeding slums than from another Mondrian exhibit? Once you've gone that far, however, turning over homes for an office building to "create jobs," the plan at issue in Kelo, doesn't seem such a stretch.

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.

Stare decisis is an important guarantor of stability in legal rules: By insisting on like treatment of like cases, it provides people with a more detailed sense of when they're engaged in constitutionally protected conduct than the stripped-down language of the Constitution alone ever could. But legal rules, to be legitimate, should also reflect a shared public understanding. That's not to say the polls must vindicate each particular court ruling. But when stability begins to undermine the public's sense that they understand the most fundamental rules by which they're governed, it's a sign that jurists need to be willing to step back and see the heap.