The Volokh Conspiracy

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Slippery Slope Arguments

Slippery Slope Arguments in History: 1823

|The Volokh Conspiracy |


slippery
Camel (A) sticks his nose under the tent (B), which collapses, driving the thin end of the wedge (C) to cause monkey to open floodgates (D), letting water flow down the slippery slope (E) to irrigate acorn (F) which grows into oak (G). [Illustration by Eric Kim, from my idea.]

From Harrington v. Commissioners of Roads of Newberry District. (S.C. Const. Ct. App. 1823), an opinion dealing with whether a court clerk should be seen as explicitly exempted from the then-existing common duty of working on road construction:

If once the door be opened, by construction, for any officer to escape from the duties of the citizen, the lock is not opened, but the key is useless, and the bolt broken; and however narrow the first opening, there will never be wanting hands to push it wide, and those will be the hands of the strong, the sagacious, and the interested.

If the clerk were to be the only officer thus privileged, I should not greatly regard it, but the peculiar reason given for this exemption will not be regarded. The principle received, will, and must be, that an officer understood to be occupied in his official duties becomes exempt, whether it appeared by statute or common law….

[S]omething peculiar may be found in every case, and future judges will look to the principle alone, and lay aside the guards and qualifications. The people will not comprehend such subtleties. The practice of the country will be upon the general principle. Other officers will be excused and considered exempt. Some circuit decisions will be predicated upon the habit of expectations of the country.

Finally, another qualified decision will creep in, and the two will be enough to beget a race of exempts that may put at defiance the principle to which we are allowing only one harmless exemption. But these little exemptions in favor of individual privileges are as contagious as the leprosy….

A principle once surrendered in a particular case is no longer firm, but trembles at every new attack. As then, in treating of great principles, we would willingly say, "esto perpetua [let it be perpetual -EV]:"  So in resisting the first encroachments, our rule should be "obsta principiis [resist at the beginning -EV]."

"Stop innovation in its early stage,
For when the upstart thing grows strong from age,
No time, nor strength of tenets stop its rage."

Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA and a Visiting Fellow (Senior Fellow starting May 2024) at the Hoover Institution (Stanford). Naturally, his posts here (like the opinions of the other bloggers) are his own, and not endorsed by any educational institution.