Stare Decisis

Author(s): William O. Douglas

Source: Columbia Law Review, Vol. 49, No. 6 (Jun., 1949), pp. 735-758
Published by: Columbia Law Review Association, Inc.
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Vol. 49 June, 1949 No. 6

STARE DECISIS*:
WILLIAM0. DOUGLAS

Most lawyers, by training and practice, are all too apt to turn their in-
terests and their talents toward the finding not the creating of precedents.
This lawyerly search is for moorings where clients can be safely anchored.
But the search has, as well, a deeper, more personal impetus. For the lawyer
himself shares the yearning for security that is common to all people every-
where. And this yearning grows as the world seems to grow more insecure.
We live in an age of doubt and confusion. Rules that once seemed fixed
and certain today seem beclouded. Principles of law have been challenged
and judges asked to refashion them. Many raised their voices in protest.
Some were special pleaders with a stake in existing law. Others had a
sincere belief that the foremost function of law in these days of stress and
strain is to remain steady and stable so as to promote security. Thus judges
have been admonished to hold steadfast to ancient precedents lest the courts
themselves add fresh doubt, confusion, and concern over the strength of our
institutions.
This search for a static security-in the law or elsewhere-is misguided.
The fact is that security can only be achieved through constant change,
through the wise discarding of old ideas that have outlived their usefulness,
and through the adapting of others to current facts. There is only an illusion
of safety in a Maginot Line. Social forces like armies can sweep around a
fixed position and make it untenable. A position that can be shifted to meet
such forces and at least partly absorb them alone gives hope of security.
I speak here of long-term swings in the law. I do not suggest that stare
decisis is so fragile a thing as to bow before every wind. The law is not
properly susceptible to whim or caprice. It must have the sturdy qualities
required of every f ramework that is designed for substantial structures.
Moreover, it must have uniformity when applied to the daily affairs of men.
Uniformity and continuity in law are necessary to many activities. If
they are not present, the integrity of contracts, wills, conveyances and securi-
*Eighth Annual Benjamin N. Cardozo Lecture delivered before the Association of
the Bar of the City of New York, April 12, 1949. This address is reprinted with per-
mission from 4 THE RECORD OF THE Ass'N OF THE BAR OF THE CITY OF NEW YORK No. 5
(1949).

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736 COLUMBIA LAW REVIEW

ties is impaired.' And there will be no equal justice under law if a negligence
rule is applied in the morning but not in the afternoon. Stare decisis pro-
vides some moorings so that men may trade and arrange their affairs with
confidence. Stare decisis serves to take the capricious element out of law and
to give stability to a society. It is a strong tie which the future has to the past.
It is easy, however, to overemphasize stare decisis as a principle in the
lives of men. Even for the experts law is only a prediction of what judges
will do under a given set of facts-a prediction that makes rules of law and
decisions not logical deductions but functions of human behavior.2 There
are usually plenty of precedents to go around; and with the accumulation of
decisions, it is no great problem for the lawyer to find legal authority for
most propositions. The difficulty is to estimate what effect a slightly different
shade of facts will have and to predict the speed of the current in a changing
stream of the law. The predictions and prophecies that lawyers make are
indeed appraisals of a host of imponderables. The decisions of yesterday or
of the last century are only the starting points.
As for laymen, their conception of the rules of law that govern their con-
duct is so nebulous that in one sense, as Gray said, the law in its application to
their normal affairs is to a very considerable extent ex post facto.3
The place of stare decisis in constitutional law is even more tenuous. A
judge looking at a constitutional decision may have compulsions to revere
past history and accept what was once written. But he remembers above all
else that it is the Constitution which he swore to support and defend, not the
gloss which his predecessors may have put on it. So he comes to formulate
his own views, rejecting some earlier ones as false and embracing others. He
cannot do otherwise unless he lets men long dead and unaware of the prob-
lems of the age in which he lives do his thinking for him.
This reexamination of precedent in constitutional law is a personal
matter for each judge who comes along. When only one new judge is ap-
pointed during a short period, the unsettling effect in constitutional law may
not be great. But when a majority of a Court is suddenly reconstituted,
there is likely to be substantial unsettlement. There will be unsettlement
until the new judges have taken their positions on constitutional doctrine.
During that time-which may extend a decade or more-constitutional law

1. See United States v. Title Ins. Co., 265 U.S. 472, 486-87 (1924).
2. Holmes, The Path of the Law, 10 HARV.L. REV.457, 459-461 (1897); Cohen,
TranscendentalNonsense and The Functional Approach, 35 COL.L. REV. 809, 842 et seq.
(1935); Moore, Rational Basis of Legal Institutions,23 COL.L. REv. 609 (1923) ; FRANK,
MIND 100-159 (1930).
LAW ANDTHE MODERN One of the uncertainties in the prediction is,
of course, the difficultyof knowing what the court will find to be the facts, when the testi-
mony is oral and conflicting. See Douglas, The Dissent: A Safeguard of Democracy, 32
AMER. JUD. Soc. 104 (1948); FRANK, IF MEN WERE ANGELS, 75-80 (1942).
3. GRAY, THE NATURE AND SOURCES OF LAW ? 225 (1927).

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 STARE DECISIS 737

will be in flux. That is the necessary consequence of our system and to my

mind a healthy one. The alternative is to let the Constitution freeze in the
pattern which one generation gave it. But the Constitution was designed for
the vicissitudes of time. It must never become a code which carries the over-
tones of one period that may be hostile to another.
So far as constitutional law is concerned stare decisis must give way be-
fore the dynamic component of history. Once it does, the cycle starts again.
Today's new and startling decision quickly becomes a coveted anchorage for
new vested interests. The former proponents of change acquire an acute
conservatism in their new status quo. It will then take an oncoming group
from a new generation to catch the broader vision which may require an un-
doing of the work of our present and their past.
* * * *

Much of what courts do is little understood by laymen. Very few por-

tions of the press undertake to show the social, economic, or political signifi-
cance of the work of the judiciary or to educate the public on long-term
trends. Lawyers often do not see the broader view which is exposed by the
narrow and intensely personal efforts of a client to vindicate a position or
gain an advantage. Yet the work of a court may send a whole economy in
one direction or help shape the manifest destiny of an era. Two illustrations
from different periods of our history will indicate what I mean.
For at least a decade or more it was commonly assumed that the Four-
teenth Amendment was adopted to protect negroes in their newly won rights.
Other interests had sought to creep under its wing. Thus corporations
claimed they were persons within the meaning of the equal protection clause.
Woods (then circuit judge) thought the language of the Amendment and its
history too clear to admit of doubt on the point. In 1870 he rejected the
contention in InsuraniceCo. v. New Orleans.4 Sixteen years passed. Woods
was now a member of the Court of which Waite was Chief Justice. A rail-
road company pressed its claim that California's tax assessment against it
violated the Equal Protection Clause of the Fourteenth Amendment. Before
the point was even argued, Waite announced from the bench that the Court
did not care to hear argument on the question whether the clause applied to
corporations. "We are all of opinion that it does," he said.5 Thus without
argument or opinion on the point the Santa Clara case became one of the
most momentous of all our decisions. It was not long before the same consti-
tutional doctrine was extended to the Due Process Clause.6 Again the deci-
sion was cryptic and oracular, without exposition or explanation.
4. 1 Woods 85 (U. S. 1870).
5. Santa Clara Co. v. Southern Pac. R.R., 118 U.S. 394, 396 (1886).
6. MinneapolisR.R. v. Beckwith, 129 U. S. 26, 28 (1889).

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738 COLUMBIA LAW REVIEW

These decisions, whether right or wrong, sound or unsound, may have

changed the course of our industrial history. Corporations were now armed
with constitutional prerogatives. And so armed, they proceeded to the de-
velopment and exploitation of a continent in a manner never equalled before
or since. Some think these decisions helped give corporations what Parring-
ton has called "the freedom of buccaneers."7 They doubtless did release
some of the dynamic quality of the drive that built industrial America in a
brilliant (albeit ruthless) way.
These unexplained (and certainly not obvious) decisions are now so im-
plicit in the financial and industrial undertaking of the nation that a recent
challenge of them had a resounding effect.8 Such is the hold of stare decisis
on the profession.
A half century passed and the Court made another decision whose im-
pact on industrial America was almost as profound.
In 1918 the Court in the Dagenhart case9 had decided that Congress had
no power to regulate the production of goods for commerce where the goods
themselves were harmless. It thus struck down a child labor law. A process
of erosion soon set in. Distinctions and qualifications were made in a long
line of decisions. Finally in 1941 in a case10 involving the constitutionality
of the Fair Labor Standards Act, a unanimous Court overruled the earlier
five-to-four decision. Stone's exposition of the Commerce Clause in the
Darby case was undoubtedly more faithful to Marshall's conception of it"
than that espoused by a bare majority of the Court in the Dagenhart case.
However that may be, the Darby case gave sanction to a new centralized
force in American industrial and social life.
Some have thought that but for the philosophy which it represents and
the power of the Federal Government which it sanctions, the nation would
not have been able to marshal all the strength and to develop all the ingenuity
and resourcefulness necessary to deal with the increasingly national problems
of the age.
The decision of the Court in the Santa Clara case protected the forces
of free enterprise that were building America. We can never know how
much the spectre of socialism and the fear of assaults on capitalism con-
tributed to the decision. But the end result is plain: the Court itself became
part of the dynamic component of history. It did not live aloof from the
turbulence of the times. It was part of the life of the community, absorbed
7. MAIN CURRENTSIN AMERICANTHOUGHT (1927).
8. See Mr. Justice Black, dissenting in ConnecticutGeneral Co. v. Johnson, 303 U. S.
77, 85 (1938).
9. Hammer v. Dagenhart, 247 U. S. 251 (1918).
10. United States v. Darby, 312 U. S. 100 (1941).
11. Gibbonsv. Ogden, 9 Wheat. 1, 196 (U. S. 1824).

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 STARE DECISIS 739

from it the dominant attitudes and feelings of the day, and moved with the
impetus of the era.
The Court in the Darby case was likewise extremely sensitive to the
critical problems of another day. The whole of the democratic world had long
been reexamining the conditions that had produced the misery of depressions.
It is a soul-searching decision when one is asked to deny the existence of the
power of government to correct a social evil. The unanimity of the Court
in the Darby case indicated how high experience had piled since Dagenhart
was decided.
Neither the Court in the Santa Clara case nor the Court in the Darby
case was insensitive to the implications of the decisions. Precedents are made
or unmade not on logic and history alone. The choices left by the generality
of a constitution relate to policy. That is why laymen and lawyers alike must
look widely and diversely for understanding. The problem of the judge is to
keep personal predilections from dictating the choice and to be as faithful as
possible to the architectural scheme. We can get from those who preceded a
sense of the continuity of a society. We can draw from their learning a feel
for the durability of a doctrine and a sense of the origins of principles. But
we have experience that they never knew. Our vision may be shorter or
longer. But it is ours. It is better that we make our own history than be
governed by the dead. We too must be dynamic components of history if
our institutions are to be vital, directive forces in the life of our age.
One can respect the policy decision both in the SanataClara case and in
the Darby case. But whatever the view on the merits all will agree, I think,
that the recent Court w-asmore faithful to the democratic tradition. It wrote
in words that all could understand why it did what it did. That is vital to the
integrity of the judicial process.
* * *

The periods in which the Santa Clara and the Darby cases were decided
were both turbulent. It is of interest to look at them comparatively for in-
sight into the problem of stability of judicial precedents. The latter period
closes in some respects a cycle started by the first.
One measure of stability is the extent to which precedents are overruled.
During the thiry-year period between 1860 and 1890, the Court on eight-
een occasions overruled (expressly or in effect) controlling precedents.'2 In
10 of these the Court was unanimous. In 13 of the overruled cases the Court
had been unanimous. Eight of these cases involved constitutional issues.
12. See Appendix A. This list has been conservatively compiled. No attempt has
been made to include cases which have been subject merely to the erosive effect of the
process of qualifying and distinguishing.

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740 COLUMBIA LAW REVIEW

Ten involved questions of state law and common law and interpretations of
statutes.
The most important of the constitutional decisions were the Legal Tenderi
Cases'3 that overruled the Hepburn case'4 decided the previous year. The Hep-
burncase, decided by a 4-3 vote in 1870, held that a creditor need not take United
States notes as payment under contracts made prior to the Act of Congress de-
claring the notes legal tender. The next year the minority of three became a
majority of five through the appointment of Strong and Bradley by President
Grant.
Feeling of the day ran high. Strange comrades were aligned on both
sides of the debate. There was bitter argument by the public. Charges of
court-packing reverberated through the country. Many who opposed the first
decision likewise opposed the second. The debate shook the country. But the
judges then as now spoke their minds. These were men of strong convic-
tions; and they gave the government the flexible control over currency which
they thought the Constitution intended.
Hughes once said of this decision: "From the standpoint of the effect
on public opinion, there can be no doubt that the reopening of the case was a
serious mistake and the overruling in such a short time, and by one vote, of
the previous decision shook popular respect for the Court.''15 My own view
is different. In some cases it is of course more important that a rule be an-
nounced and a dispute put at rest than that a decision be made one way or the
other. But when it comes to a constitutional question, especially the authority
of government to act, the decision where possible should reflect views of the
full court.
The reversal of the Court in the Legal Tender Cases had a healthy effect.
Management of currency was left in the legislative field, where the school of
which Cardozo was a conspicuous member thinks most social and economic
problems should remain. It was left so that the people could experiment even
unwisely. That is a part of the adventure in democratic government-a view
expressed by Bradley in the Legal Tender Cases when he stated, "Questions
of political expediency belong to the legislative hlalls, not to the judicial
forum."''6
In the decade preceding 1860, the Court had held that the admiralty
jurisdiction depended on the navigable character of the water, not upon the
ebb and flow of the tide thus overruling a leading case from the preceding

13. 11 Wall. 682 (U. S. 1868); 12 Wall. 457 (U. S. 1870).

14. Hepburnv. Griswold, 8 Wall. 603 (U. S. 1869).
15. HUGHES, THE SUPREME COURT OF THE UNITED STATES 52 (1928).
16. 12 Wall. 457, 562 (U.S. 1870).

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 STARE DECISIS 741

generation.17 In the 1868 Term the Court made the foundation of admiralty
even firmer by holding, contrary to a ten-year-old decision that admiralty
jurisdiction extended to commerce on navigable waters though the trans-
portation was wholly within a state; and further that the action in remnwas
limited to the admiraltv court.18
In the early part of the period from 1860-1890, the Court gave broad
leeway to state regulations of interstate commerce.'9 It sustained a Wiscon-
sin rate even on interstate commerce since Congress had not acted.20 It held
valid a tax on a railroad's gross receipts from interstate commerce.21 It al-
lowed a State to impose a nondiscriminatory license tax on an interstate
business.22 The first two of these decisions were by a divided Court; the
third was unanimotus.
But in only a few years important and rather basic shifts on these matters
were made. The silenice of Congress-the fact that it had not regulated a
particular matter-wras given increasing weight as evidence of an intent to
leave interstate commerce free from regulation. The Court undertook a
stricter application of constitutional principles designed to keep the arteries
of commerce open and to free the interstate aspects of business from state
control whether by taxes or regulation.23
State regulation of discriminatory interstate rates of carriers was an-
nulled in the October Term, 1886.24 In the same Term a unanimous Court
held unconstitutional an unapportioned tax on the gross receipts of interstate
commerce.25 The following Term a unanimous Court overturned its previous
unanimous decision and held that a license tax on an interstate business was
unconstitutional.26 Shortly thereafter it struck down a state law regulating
the sale of liquor in the original package by the importer and with it a forty-
three-year-old precedent.27 Even the evils of alcohol were considered less
weighty than the evils of a constrained interstate commerce. Field's view

17. The Genesee Chief, 12 How. 443 (U.S. 1851), overruling, The Thomas Jefferson,
10 Wheat. 428 (U.S. 1825).
18. The Belfast, 7 Wall. 624 (U.S. 1868), overruling, Allen v. Newbury, 21 How.
244 (U.S. 1858).
19. These decisions, like Munn v. Illinois, 94 U.S. 113 (1876) itself, reflected the
tolerance for local regulations expressed in Cooley v. Board of Wardens, 12 How. 299,
319 (U.S. 1851).
20. Peik v. Chicago & N. Ry., 94 U.S. 164 (1876).
21. State Tax on Railway Gross Receipts, 15 Wall. 284 (U.S. 1872).
22. Osbornev. Mobile, 16 Wall. 479 (U.S. 1872).
23. For longer and more fundamental cyclical swings under the Commerce Clause
see RuTLEDGE, A DECLARATION OF LEGAL FAITH (1947); RIBBLE, STATE AND NATIONAL
POWER OVERCOMMERCE (1947).
24. Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557 (1886).
25. Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326 (1887).
26. Leloup v. Port of Mobile, 127 U. S. 640 (1888).
27. Leisy v. Hardin, 135 U. S. 100 (1890), overruling, Peirce v. New Hampshire, 5
How. 504 (U.S. 1847).

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742 COLUMBIA LAW REVIEW

that (apart from strictly local aspects of commerce) the silence of Congress
was the "equivalent to its declaration that commerce in the matter shall be
free"28was in the ascendancy.
In this period the Court also rejected a fifty-nine-year old precedent and
held that Congress had no power to commit for contempt incurred by refusal
to obey and respect an order in a Congressional investigation.29 In the 1824
Term Marshall had ruled that the question whether a suit is against a State
within the prohibition of the Eleventh Amendment is determined by reference
to the parties of record. After a checkered career that doctrine was finally
excised from the law.30
These were the eight cases overruling precedents on constitutional law.
The other ten involved more mundane subjects. In the October 1875
Term the Court in two cases, one from Missouri31 and one from Illinois32
held certain municipal bonds invalid under state law. In the October 1877
Term it overruled one of these33 and in the October 1879 Term it overruled
the other.34 In 1868 the Court had held that a state while the owner of bearer
bonds could limit their negotiability and charge all subsequent purchasers with
notice.35 Less than 20 years later it changed its position on that point in a
case involving the negotiability of the bonds of the United States.36 It over-
ruled a 57-year old decision written by Marshall,37and held that a judgment
against one partner was a bar to an action against a copartner.38 In the Octo-
ber 1874 Term it partially overruled39 a case rendered two years earlier40
which held that the contingent right of preemption in public lands granted a
railroad created an exemption of those lands from state taxation.
In the October 1873 Term it overruled a series of recent cases41concern-
ing the practice and proceedings in Territorial Courts.42 In the October 1882
Term it rejected its earlier unanimous view43 on the construction of an Act of
Congress regarding the abatement of duties on imports on account of damage
28. Bowman v. Chicago & N. Ry., 125 U. S. 465, 508 (1888).
29. Kilbourn v. Thompson, 103 U. S. 168 (1880), overruling, Anderson v. Dunn,
6 Wheat. 204 (U.S. 1821).
30. In re Ayres, 123 U. S. 443 (1887), overruling in part, Osborn v. U. S. Bank, 9
Wheat. 738 (U.S. 1824).
31. Harshman v. Bates County, 92 U. S. 569 (1875).
32. Town of Concord v. Savings Bank, 92 U. S. 625 (1875).
33. County of Cass v. Johnston, 95 U. S. 360 (1877).
34. Fairfield v. County of Gallatin, 100 U. S. 47 (1879).
35. Texas v. White, 7 Wall. 700 (U. S. 1868).
36. Morganv. United States, 113 U. S. 476 (1885).
37. Sheehy v. Mandeville,6 Cranch253 (U. S. 1810).
38. Mason v. Eldred, 6 Wall. 231 (U. S. 1867).
39. Railway Co. v. McShane, 22 Wall. 444 (U. S. 1874).
40. Railway Co. v. Prescott, 16 Wall. 603 (U. S. 1872).
41. Noonan v. Lee, 2 Black 499 (U. S. 1862) ; Orchardv. Hughes, 1 Wall. 73 (U. S.
1863); Dunphy v. Kleinsmith, 11 Wall. 610 (U. S. 1870).
42. Hornbuckle v. Toombs, 18 Wall. 648 (U. S. 1873).
43. Shelton v. Collector, 5 Wall. 113 (U. S. 1866).

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 STARE DECISIS 743

allowances.44 In the October 1882 Term the Court reversed an earlier de-
cision45 concerning the damages covered by appeal bonds under an Act of
Congress.46 Meanwhile it had also overruled47 a fairly recent decision48
restricting the right to review decisions of the highest court of a State. In the
October 1880 Term it rejected its prior interpretation of a patent rendered
seven years earlier49and held that the patent was valid as one for a process.50
A number of decisions in the latter group involved overruling the Court's
prior construction of Acts of Congress. These precedents were overruled
against objections, at times vigorous, that the correction of the error, if any,
should be left to Congress.
* * *

In the period from 1937-March 28, 1949, the Court in 30 cases overruled
earlier decisions.51 In 21 of these the reversals were on constitutional
grounds. In the great majority of the 30 cases the cases overruled had been
decided within the previous 20 years.
These cases are too fresh in memory to require much space for discus-
sion. The largest group-8 in number-related to the taxing power of state
and federal governments. Tax rates had become mnoreburdensome than ever
before in our history; and tax exemptions were being closely scrutinized as
the government's need for revenue grew.
The new approach was largely fashioned by Hughes. He held for the
Court that a nondiscriminatory federal income tax upon the lessee of a State
was not open to the objection that it was a tax on an instrumentality of the
State.52 Two decisions, one from that decade and one from the preceding
decade, fell.53 The new doctrine was applied to sustain an Oklahoma estate
tax on Indian property54 previously held exempt under the federal instru-
mentality doctrine.55 And finally in OklahonmaTax Commiiiiission v. Texas
Co.,56 decided March 7, 1949, the rest of the cases by which tax immunities
had been acquired in Indian property under the instrumentality theory were
overruled.57

44. United States v. Phelps, 107 U. 5. 320 (U. 5. 1882).

45. Stafford v. Union Bank of La., 16 How. 135 (U. S. 1853).
46. Kountze v. OmahaHotel Co., 107 U. S. 378 (1882).
47. Trebilcock v. Wilson, 12 Wall. 687 (U. S. 1871).
48. Roosevelt v. Meyer, 1 Wall. 512 (U. S. 1863).
49. Mitchell v. Tilghman, 19 Wall. 287 (U. S. 1873).
50. Tilghman v. Proctor, 102 U. S. 707 (1880).
51. See Appendix B, and comment, note 7, supra.
52. Helvering v. Products Corp., 303 U. S. 376 (1938).
53. Gillespie v. Oklahoma,257 U.S. 501 (1922); Burnet v. CoronadoOil & Gas Co.,
285 U. S. 393 (1932).
54. Oklahoma Tax Comm'nv. United States, 319 U. S. 598 (1943).
55. Childersv. Beaver, 270 U. S. 555 (1926).
56. 69 Sup. Ct. 561 (1949).
57. Howard v. Gipsy Oil Co., 247 U. S. 503 (1917); Large Oil Co. v. Howard, 248

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 744 COLUMIBIA LAW REVIEW

Other private tax exemptions, riding on the concept of sovereign im-

munity from taxation, were reexamined and eliminated. Salaries of federal
employees were placed within the reach of the state-taxing power, and the
salaries of state employees within the reach of the national power.58 A state
tax on a private contractor was upheld, even though its burden would eventu-
ally be passed on to the federal government.59 This tendency closely to scruti-
nize tax privileges led to the taxation of the salaries of federal judges ap-
pointed after the taxing statute.60
A ten-vear-old precedent6' was overruled and a State was allowed to levy
an inheritance tax on shares of a corporation incorporated under its law, al-
though the deceased had been domiciled elsewhere.2 In another tax case68
the Court repudiated a newly spun theory of the privileges and immunity
clause64which promised to throttle state power over business affairs.
In other ways too, the Court enlarged the regulatory power of the States
in the field of economic affairs-by a less restrictive reading of the equal-
protection clause ;65by a more pervasive view of state regulation of local as-
pects of interstate industries ;66 by tolerance of price-fixing by the States.67
A judicially created restraint on the power of Congress over commerce
was also removed in the Darby case.68 And contrary to long-standing rulings
on the character of insurance,69that business was held covered by the Sher-
man Act.70 During this period the Court also strengthened the federal emi-
nent domain power71 by eliminating private property interests which had been
judicially created in the bed of a navigable stream.72

U. S. 549 (1918); Oklahomav. Barnsdall Refineries, 296 U. S. 521 (1936); Choctaw &
Gulf R. Co. v. Harrison, 235 U. S. 292 (1914) ; Indian Oil Co. v. Oklahoma,240 U. S. 522
(1916).
58. Graves v. New York ex rel. O'Keefe, 306 U. S. 466 (1939), overruling, Collector
v. Day, 11 Wall. 113 (U. S. 1870); and New York ex rel. Rogers v. Graves, 299 U. S.
401 (1937).
59. Alabama v. King & Boozer, 314 U. S. 1 (1941), overruling, Panhandle Oil Co. v.
Knox, 277 U. S. 218 (1928) and Graves v. Texas Co. 298 U. S. 393 (1936).
60. O'Malley v. Woodrough, 307 U. S. 277 (1939), overruling, Miles v. Graham,
268 U.S. 501 (1925).
61. First National Bank v. Maine, 284 U. S. 312 (1932).
62. State Tax Commissionv. Aldrich, 316 U. S. 174 (1942).
63. Madden v. Kentucky, 309 U.S. 83 (1940).
64. Colgate v. Harvey, 296 U. S. 404 (1935).
65. Tigner v. Texas, 310 U. S. 141 (1940), overruling, Connolly v. Union Sewer
Pipe Co., 184 U. S. 540 (1902).
66. California v. Thompson, 313 U. S. 109 (1941), overruling, Di Santo v. Pennsyl-
vania, 273 U. S. 34 (1927).
67. Olsen v. Nebraska, 313 U. S. 236 (1941), overruling, Ribnik v. McBride, 277
U. S. 350 (1928).
68. United States v. Darby, 312 U. S. 100 (1941), overruling, Hammer v. Dagenhart,
247 U. S. 251 (1918).
69. Paul v. Virginia, 8 Wall. 168 (U. S. 1868).
70. United States v. Underwriters Ass'n., 322 U. S. 533 (1944).
71. United States v. Chicago, M. St. P. & P. R.R., 312 U. S. 592 (1942).
72. United States v. Lynah, 188 U. S. 445 (1903).

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 STARE DECISIS 745

In the field of civil liberties the Court decided and then rather promptly
reversed two decisions: it held that a State could not require school children
to perform a flag salute in opposition to their religious beliefs73 and it struck
down a license tax imposed on the dissemination of religious literature by a
religious group.74 It also reversed a nine-year-old precedent75and held that
where a primary election was an integral part of the elective process for
nominating candidates for Congress, a State could not exclude a person from
the right to vote in it on account of race or color.76
In the divorce field the Court reconstrued the Full Faith and Credit
Clause so as to give the state of the domicile of one spouse more power over
dissolution of the marriage relation.77
In Erie R. Co. v. Tompkins7t8the Court rid the federal system of a prece-
dent almost a century old,79and with the latter went others that became "ob-
solete."80 The Court saw its earlier holding as inviting discrimination by
nonresidents of one State against residents of another in diversity cases. It
therefore took a step towards uniformity by making local law as construed
by state agencies controlling in federal courts in that type of case. And
finally in Lincoln Union v. Northwestern Co.,81 decided January 3, 1949, it
sustained the constitutionality of state laws outlawing the closed shop. In
doing so it repudiated some precedents82by which the constitutional standard
of Due Process had absorbed economic theories of the judiciary. It returned
closer to the earlier constitutional pronouncements that the States have the
power "to legislate against what are found to be injurious practices in their
internal commercial and business affairs, so long as their laws do not run
afoul of some specific federal constitutional prohibition, or of some valid
federal law."83
Those were the cases reflecting rights-about-face in constitutional law
during this recent period. There were others which have been important in
the affairs of the nation. A ruling that a utility's depreciation had to be taken
73. Board of Education v. Barnette, 319 U.S. 624 (1943), overruling, Minersville
School Dist. v. Gobitis, 310 U. S. 586 (1940).
74. Jones v. Opelika, 319 U. S. 103 (1943), overruling, Jones v. Opelika, 316 U. S.
584 (1942).
75. Grovey v. Townsend, 295 U. S. 45 (1935).
76. Smith v. Allwright, 321 U. S. 649 (1944).
77. Williams v. North Carolina, 317 U. S. 287 (1942), overruling, Haddock v. Had-
dock, 201 U. S. 562 (1906), and Sherrer v. Sherrer, 334 U. S. 343 (1948), overruling,
in part, Andrews v. Andrews, 188 U. S. 14 (1903).
78. 304 U.S. 64 (1938).
79. Swift v. Tyson, 16 Pet. 1 (U. S. 1842).
80. CompareAngel v. Bullington, 330 U. S. 183, 194 (1946), weithLupton's Sons Co.
v. Automobile Club, 225 U. S. 489 (1912).
81. 335 U.S. 525 (1949).
82. Adair v. United States, 208 U. S. 161 (1908); Coppage v. Kansas, 236 U. S. 1
(1915).
83. Lincoln Union v. Northwestern Co., 335 U.S. 525, 536 (1949).

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746 COLUMBIA LAW REVIEW

at present value rather than cost was rejected.84 The rule that he who sells
an unpatented part of a combination for use in the assembled machine may
be guilty of contributory infringement was rejected where a combination
patent was being used to protect an unpatented part from competition.85 It
was held that in admiralty the warranty of seaworthiness extended to the ap-
pliances and the place of work and that the owner was not relieved of liability
because an employee negligently chose defective equipment where sound
equipment was available.86
In five cases the Court overruled decisions involving interpretations of
Acts of Congress and thus cleared the stream of law of derelicts of its own
creation, not waiting for Congress to act. It held that private operators of
vessels under certain contracts with the government could be sued for torts,
the claimants not being restricted to suits against the United States under the
Suits in Admiralty Act.87 It gave a restrictive interpretation to a statute
declaratory of the power of federal courts to punish for contempt88and thus
returned to earlier views of the law. It changed its prior construction of the
statute governing naturalization so as to do away with the requirement of an
oath to bear arms as a condition of citizenship.89 It overruled two four-year-
old precedents construing the provision of the Revenue Act of 1926 that deals
with transfers "intended to take effect in possession or enjoyment" at or after
the grantor's death.90 And just the other day it overruled a nineteen-year-old
decision in the same field.91
* * *

In these cases, as in the ones from the 1860-1890 period already noticed,
the Court rejected numerous pleas to let Congress correct mistakes that the
Court had created. It was also reluctant to find in the silence of Congress
approval of the statutory interpretations which it had adopted.
It is, I think, a healthy practice (too infrequently followed) for a court
to reexamine its own doctrine. Legislative correction of judicial errors is
84. F.P.C. v. Hope Gas Co., 320 U. S. 591 (1944), overruling that part of, United
Railways v. West, 280 U. S. 234 (1930).
85. Mercoid Corp. v. Mid-ContinentCo., 320 U. S. 661 (1944), overruling, Leeds &
Catlin Co. v. Victor Talking Machine Co. (No. 2), 213 U. S. 325 (1909).
86. Mahnich v. Southern S.S. Co., 321 U. S. 96 (1944), overruling, Plamals v. Pinar
Del Rio, 277 U. S. 151 (1928).
87. Brady v. Roosevelt S.S. Co., 317 U. S. 575 (1943), overruling, Fleet Corp. v.
Lustgarten, 280 U. S. 320 (1930).
88. Nye v. United States, 313 U. S. 33 (1941), overruling, Toledo Newspaper Co. v.
United States, 247 U. S. 402 (1918).
89. Girouard v. United States, 328 U. S. 61 (1946), overruling, United States v.
Schwimmer, 279 U. S. 644 (1929), United States v. Macintosh, 283 U. S. 605 (1931),
United States v. Bland, 283 U. S. 636 (1931).
90. Helvering v. Hallock, 309 U. S. 106 (1940), overruling, Helvering v. St. Louis
Trust Co., 296 U. S. 39 (1935), and Becker v. St. Louis Trust Co., 296 U. S. 48 (1935).
91. Commissionerv. Church, 335 U. S. 632 (1949), overruling, May v. Heiner, 281
U.S. 238 (1930).

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 STARE DECISIS 747

often difficult to effect. Moreover, responsible government should entail the

undoing of wrongs committed by the department in question. That course
is faithful to democratic traditions. Respect for any tribunal is increased if
it stands ready (save where injustice to intervening rights would occur)92
not only to correct the errors of others but also to confess its own. This was
the philosophy expressed by a judge of the New York Court of Appeals al-
most a century ago when he proclaimed it "the duty of every judge and every
court to examine its own decisions, . . . without fear, and to revise them
without reluctance."93 That is to heed Shakespeare's warning in Merchant of
Venice,
"'Twill be recorded for a precedent; And many an error, by the
same example Will rush into the state."
* * *

I said that one measure of instability in the law is represented by the

overruling of precedents. But the overruling itself is at times not the true
measure of the change. Commonly the change extended over a long period;
the erosion of a precedent was gradual. The overruling did not effect an
abrupt change in the law; it rather recognized a fait accompli.
In other words the distinguishing of precedents is often a gradual and
reluctant way of overruling cases. In modern times the House of Lords has
rarely overruled a precedent. But as Radin has shown it has carried the
technique of distinguishing precedents "to a very high pitch of ingenuity."94
And for us the process of distinguishing may indeed do service for overruling
or have the same effect, as Brandeis observed in Burnet v. Coronado Oil &
Gas Co.95
Hcanmer v. Dagenhart96had a checkered career. Its principle sometimes
seemed to be on the wane and then to be restored. It was, for example, held
not to forbid federal punishment of the transportation of stolen motor ve-
hicles97 or of goods made by convict labor.93 Yet federal control of the
wages, hours and working conditions of miners engaged in producing coal
was invalidated.99 But that was the last burst of vitality of the doctrine.
Labor Board v. Jonzes& Laughlin,100decided in 1937, upheld the Wagner Act

92. On the prospective overruling of precedents to prevent such hardship see Great
Northern Ry. Co. v. Sunburst Co., 287 U. S. 358 (1932); Aero Spark Plug Co. v. B. G.
Corporation,130 F. 2d 290, 296-299 (2d Cir. 1942).
93. Baker v. Lorillard, 4 N.Y. 257, 261 (1850).
94. The Trail of the Calf, 32 CORN. L. Q. 137, 143 (1946).
95. 285 U.S. 393, 408 (1932).
96. 247 U.S. 251 (1918).
97. Brooks v. United States, 267 U.S. 432 (1925).
98. Kentucky Whip & Collar Co. v. Illinois Central R.R., 299 U.S. 334 (1936).
99. Carter v. Carter Coal Co., 298 U.S. 238 (1936).
100. 301 U.S. 1 (1937).

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748 COLUMBIA LAW REVIEW

as applied to a company producing goods for commerce, and foreshadowed

the demise of the Dagenhart case. Thus it had been at least substantially im-
paired before United States v. Darby10'llaid it finally to rest.
National Carbide Corp. v. Cominissioner,'02 decided March -28, 1949,
continued the process of effective erosion of Southern Pacific Co. v. Lowe.103
It repudiated the doctrine of the Lowe case that a corporation formed or
operated for business purposes could be disregarded for tax purposes if it had
substantial identity in practical operation with its owner. A vestige of Lowe
may have been left but the shadow that its doctrine had cast on tax law was
removed. Ott v. Mississippi Barge Co.,'04 decided February 7, 1949, sus-
tained a state tax on vessels moving in interstate waters on the theory of ap-
portionment which had not emerged in earlier cases. Thus the law swept
around old landmarks.105
One of the most interesting examples of this process is the force of
Helvering v. Producers Corp.'06 which undermined the doctrine of intergov-
ernment tax immunity as extended to private persons. It overruled two cases.
Over a ten-year period other cases followed, eliminating one by one the
islands of tax immunity which private interests had acquired through the
instrumentality theory. This doctrine had special vitality in the field of
Indian affairs. Remnants of it survived in that area. Not until Oklahoma
Tax Commission v. Texas Co.,107 decided March 7, 1949, did the Court wipe
out the residue of those cases.
The Texas Co. case involved a nondiscriminatory state gross production
tax and excise tax on petroleum produced by a lessee of mineral rights in al-
lotted and restricted Indian lands. The taxes were sustained, which meant
overruling three earlier decisions.108
But the Court went further. It also overruled two other cases-one in-
volving a tax akin to an occupation or privilege tax on a lessee of Indian
lands109and the other involving a state tax on such a lease.110 The overruling
of the latter cases was unnecessary in a technical sense, for they were not
squarely opposed to the Texas Co. case. But they were hostile to its theory
and supplied the foundation for the opposing view. So in a practical sense

101. 312 U.S. 100 (1941).

102. 69 Sup. Ct. 726 (1949).
103. 247 U.S. 330 (1918).
104. 69 Sup. Ct. 432 (1949).
105. St. Louis v. Ferry Co., 11 Wall. 423 (U. S. 1870) ; Ayer & Lord Tie Co. v.
Kentucky, 202 U. S. 409 (1906).
106. 303 U.S. 376 (1938).
107. 69 Sup. Ct. 561 (1949).
108. Howard v. Gipsy Oil Co., 247 U. S. 503 (1918) ; Large Oil Co. v. Howard, 248
U. S. 549 (1919); Oklahoma v. Barnsdall Refineries, 296 U. S. 521 (1936).
109. Choctaw & Gulf R. Co. v. Harrison, 235 U. S. 292 (1914).
110. Indian Oil Co. v. Oklahoma,240 U.S. 522 (1916).

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 STARE DECISIS 749

they were derelicts in the stream of the law. They served no purpose except
to create illusory islands of tax immunity and hence to cause mischief.
Thus the actual overruling of cases is no true measure of the rate of
change in the law. The overruling may come at the end of a cycle of change
and not mark its commencement. It is this gradual process of erosion of
constitutional doctrine that has the true unsettling effect. It is this which
often breeds wasteful uncertainty. As the first landmark falls, the outsider
may have few clues as to the importance of the shift. The overruling may
and often does presage a sweeping change in constitutional doctrine. Years
of litigation may be needed to rid the law of mischievous decisions which
should have fallen with the first of the series to be overruled.
That is why it is my belief that it would be wise judicial administration
when a landmark decision falls to overrule expressly all the cases in the same
genus as the one which is repudiated, even though they are not before the
Court. There is candor in that course. Stare decisis then is not used to breed
the uncertainty which it is supposed to dispel.
* * *

The development of exceptions or qualifications to constitutional doctrine

can have a profound unsettling effect. An excellent example comes from the
period 1860-1890.
The power of the states to fix utility rates was a new issue for the Court
at that time. The issue was conceived from the conflict between business
interests and midwestern farmers, who were rapidly being impoverished by
low prices, high interest and high freight rates. They organized the Grange
movement, which succeeded in exerting pressure in midwestern legislatures
and obtaining legislation which provided limitations on rates.
It was in this setting that the issue was brought to the Supreme Court
in a case involving the power of Illinois to fix the maximum rates for storage
of grain in warehouses (Munn v. Illinois). *1 A year passed between argu-
ment and the rendering of decision in the case. Two important conclusions
were reached in this first important case on the subject of rate-making. (1)
The power of a State to regulate industries "affected with a public interest"
was upheld and the character of business falling in that category was broadlyr
defined. (2) Recourse for correction of the rates was directed to the legis-
lature and not to the courts. Field, in a vigorous dissent, joined in by Strong,
viewed the conclusions of the Court as "subversive of the rights of private
property" which the judiciary were duty-bound by the Constitution to defend.
This dissent backed by the vigor of Field was to have telling effect in succeed-
ing years.
111. 94 U.S. 113 (1876).

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750 COLUMBIA LAW REVIEW

There soon began a process of qualification which narrowed the categorv

of businesses whose prices could be fixed by a State. The most striking re-
strictions on legislative power to fix prices were reached in the '20's by a
closely divided Court. (Tyson & Bro. v. Banton"l2 and Ribnik v. Mc-
Bride."13) Those decisions marked the floodtide of exceptions and qualifica-
tions to the principle of Munn v. Illinois.
Beginning last century, Field's dissent as to the power of the courts to
review utility rates had a powerful influence. There was at first some yield-
ing to Field's view. Then came a change in personnel of the Court. Field's
views became the law."14 In 1890, the Court ruled that the question of rea-
sonableness of rates was not entirely a legislative matter but was ultimately
a judicial question arising under the Due Process Clause."15 Then in 1898,
came Smnythv. Ames,1"6whose spirit many a judge wished were unblessed.
It set constitutional standards for rate-making which haunted utility regula-
tion.
Field's philosophy was that the "present assault upon capital is but the
beginning" and only the "stepping-stone to others, larger and more sweeping,
till our political contests will become a war of the poor against the rich; a war
constantly growing in intensity and bitterness."'117 That philosophy merged
with political power to give direction to the age. The spectre of confiscation
rode high. Security was thought to be dependent upon keeping capital un-
fettered.
Today there is greater realization that survival lies in the development
of a cooperative society where the security of capital rest on the broad base of
the prosperity of the multitude. Today the accepted view is that property
need not be made tyrant in order to give men freedom and incentive to acquire
it, own it, and manage it and to unleash the great productive power of free
enterprise.
Much of the unsettling influence of the Court since 1937 has been in re-
moving from constitutional doctrine excrescences produced early in the cen-
tury. The tendency has been to return to older views of constitutional inter-
pretation, and to sanction governmental power over social and economic
affairs which the Court beginning in the 'S0's and particularly in the preceding
ten to thirty years had denied. Only if this is understood can the work of
the period be put into clear historical perspective.
As respects price-fixing the process of restoration of the principle of
112. 273 U.S. 418 (1927).
113. 277 U.S. 350 (1928).
114. See FPC v. Natural Gas Pipeline Co., 315 U. S. 575, 600 (1942).
115. Chicago,M. & St. P. R. Co. v. Minnesota, 134 U. S. 418 (1890).
116. 169 U.S. 466 (1898).
117. See Pollock v. Farmers Loan & Trust Co., 157 U. S. 429, 607 (1895).

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 STARE DECISIS 751

Munn v. Illinois started almost at once after the flood of exceptions and
qualifications had been reached. The ebb was clear and distinct.118 The tide
had started running back to Muwn v. Illinois at least by 1934 when Nebbia v.
New York'19 upheld the power of New York to fix the retail price of milk.
Olsen v. Nebraska,120 decided April 28, 1941 merely marked the low tide.
We returned in less than 70 years substantially to our starting point. Munn
v. Illinois regained its lost vitality so far as price-fixing was concerned.
Field's fear that "the prices of everything, from a calico gown to a city
mansion, may be the subject of legislative direction"'12came true.
But that was only one phase of a basic shift in constitutional doctrine
which took place during the recent period. Waite in Munn v. Illinois ex-
pressed in homely and unsophisticated terms the importance of judicial self-
denial in review of social legislation. It was the view so ably espoused in
later years by Holmes, Brandeis, Cardozo, and Stone. In Munn v. Illinois,
Waite said, "For protection against abuses by legislatures the people must
resort to the polls, not to the coutts."'122
That principle was largely abandoned in the intervening years. The
courts became the place to get relief from the pinch of legislation deemed to
be improvident and unwise or hostile to the dominant interests of the day.
But in the period from 1937-1949 Waite's view has been in process of res-
toration. The wisdom of legislation is to be tested by political processes, not
by litigation. There are numerous instances during the recent period where
that view has been applied. The recent closed-shop decision123 is perhaps the
best example. In the whole field of social legislation we have in a sense
closed the cycle by returning to the philosophy of Munn v. Illinois and by
wiping out the large group of intervening decisions which were hostile to
legislative power and jealous of judicial power.124
The weakening of Field's influence on judicial review of utility rates has
not been as complete. The force of the precedents forged in his era (and
later strengthenedby Smyth v. AMes'25-) has been considerablydissipated,
118. See Tagg Bros. v. United States, 280 U. S. 420 (1930); O'Gorman& Young v.
Hartford Fire Ins. Co., 282 U. S. 251 (1931).
119. 291 U.S. 502 (1934).
120. 313 U.S. 236 (1941).
121. Munn v. Illinois, 94 U. S. 113, 152 (1876).
122. Id. at 134.
123. Lincoln Union v. Northwestern Co., 335 U. S. 525 (1949).
124. The durabilityof Munn v. Illinois, 94 U. S. 113 (1876), on another point should
be mentioned. Waite ruled that grain warehouses though instruments of interstate com-
merce could be regulated by the States until Congress acted. Id. at 135. Congress did
act in 1916. By the United States Warehouse Act, 39 STAT. 486, (1916), 7 U.S.C. ? 241
et seq. (1946), it made federal regulation subservient to state regulation. In 1931 it
altered the scheme of the Act, making federal regulation exclusive of state regulation as
respects the matters covered by the federal act. Cf. Rice v. Santa Fe Elevator Corp.,
331 U. S. 218 (1947).
125. 169 U. S. 466 (1898).

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752 COLUMBIA LAW REVIEW

though they have not been overruled. Recent cases,'26 however, adopted a
more pragmatic basis for rate-making, though the full-blown rule of legisla-
tive power in rate-making which Munn v. Illinois sponsored was not restored.
* * *

There are other factors of change and unsettlement in the law which
defy statistical treatment. A rule of law correcting a social evil may be an-
nounced. But if it is not applied in the life of the community, there is no
change. In spite of a new and unsettling pronouncement the course of the
law may go on its way, undisturbed. On the other hand, if the Court as a
matter of judicial administration pursues the matter and applies the princi-
ple with care and vigor in case after case, the effect of the change may be
profound. We can only tell whether the Court is working in that direction
by examining the cases which it takes and the manner of its disposition of
them.
On what manner of cases does the Court spend its time? How is the
discretionary certiorari jurisdiction employed? To what problems is the
Court giving emphasis?
A few examples from the current period will illustrate how this matter
of emphasis has caused substantial changes in law administration and in
statutory interpretation.
There has been increasing scrutiny of charges that confessions in crim-
inal cases were coerced and a growing hostility to traces of third-degree
methods of the police in criminal prosecutions.'27 There has been an in-
creasing attention to the constitutional requirement of counsel in criminal
cases.128 One product of that scrutiny has been fundamental change6 in the
practice in some States, notably Missouri and Illinois.'-9 There has been
increasing attention to Federal Employer Liability Act cases that an indif-
ferent or unfriendly attitude had permeated with a philosophy hostile to that
reflected in the legislation.130
* * *

The study of changes in judicial precedents gives, of course, a distorted

view. It is like the study of pathological cases in social or medical sciences.
126. Federal Power Commissionv. Natural Gas Pipeline Co., 315 U. S. 575 (19442;
Federal Power Commissionv. Hope Gas Co., 320 U. S. 591 (1944).
127. See Chambersv. Florida, 309 U. S. 227; Ashcraft v. Tennessee, 322 U. S. 143;
Malinski v. New York, 324 U. S. 401; Haley v. Ohio, 332 U. S. 596.
128. See Williams v. Kaiser, 323 U. S. 471; Hawk v. Olson, 326 U. S. 271; De Meer-
leer v. Michigan,329 U. S. 663.
129. Rule 27A, 400 Ill. 22 (1947); Judicial Conferenceof Missouri, Executive Coun-
cil, Special Report No. 3, February 8, 1945; Special Report No. 4, February 20, 1945,
Special Report No. 9, November 8, 1945. See 1 J. Mo. BAR 73 (1930) ; 2 J. Mo. BAR 17,
28 (1931).
130. See Wilkerson v. McCarthy, 335 U.S. 807 (1949), for a review of these cases
since the 1943 Term.

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 STARE DECISIS 753

The norm is robust and enduring. The case that gets into the books often
has an unsettling effect. Yet we are apt to forget that "the fact that a case
is in the reports at all is in itself uncertain."'13' The great body of law is un-
perturbed by events that may rock a nation.
When the changing stream of public law is studied there are three con-
siderations to keep in mind.
First. We have had only one major dispute that struck at the vitals of
our federalism. That was the Civil War. Our controversies and quarrels
even at the level of constitutional law have been of a lesser kind. They have
been disputes calling for adjustment within the framework of our Charter
not for repudiation of it. As one of my Brethren recently stated,'32 they
have not involved reconsideration of our basic constitutional tenets which
have been accepted since the days of Marshall. They have entailed argu-
ment over the application of established doctrine. The problem has been to
free the system for growth unhampered by the crippling restraints which
men of cramped and narrow vision placed on it. In considering the charges
leveled against those of any period who are responsible for giving new or
broader interpretations to the Constitution or discarding precedents it is well
to remember these words of Thayer,133
And so it happens, as one looks back over our history and the field
of political discussions in the past, that he seems to see the whole
region strewn with the wrecks of the Constitution,-of what people
have been imagining and putting forward as the Constitution. That
it was unconstitutional to buy Louisiana and Florida; that it was
unconstitutional to add new states to the Union from territory not
belonging originally to it; that it was unconstitutional to govern the
territories at all; that it was unconstitutional to charter a bank, to
issue paper money, to make it a legal tender, to enact a protective
tariff,-that these and a hundred other things were a violation of the
Constitution has been solemnly and passionately asserted by states-
men and lawyers. Nothing that is now going forward can exceed
the vehemence of denunciation, and the pathetic and conscientious
resistance of those who lifted up their voices against many of these
supposed violations of the Constitution. The trouble has been, then
as now, that men imputed to our fundamental law their own too nar-
row construction of it, their own theory of its purposes and its spirit,

131. Radin, The Trail of the Calf, 32 CORN.L. Q. 137, 148 (1946).
132. Reed, Stare Decisis and ConstitutionalLaw, 35 PA. BARASSN. Q. 131, 139-140
(1938). "No responsible official, jurist or statesman, has ever suggested that an effort
should be made to ask reconsiderationof the doctrine of dual sovereignty, the separation
of powers or the supremacy of the Federal Constitution. It is the applications of the
established doctrine that fill the courts and, indeed, the nation with controversy. Those
applications are properly and continuously subject to critical reexamination. No threat
of a challenge to established constitutional principles is on the horizon. The most likely
controversiesas to constitutionalprinciple, in the immediate future, will be over the in-
terrelation or interaction of one principle upon another."
133. LEGAL ESSAYS 158 (1908).

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754 COLUMBIA LAW REVIEW

and sought thus, when the question was one of mere power, to re-
strict its great liberty.
Second. It is sometimes thought to be astute political management of a
shift in position to proclaim that no change is under way. That is designed
as a sedative to instill confidence and allay doubts. It has been a tool of
judges as well as other officials. Precedents, though distinguished and quali-
fied out of existence, apparently have been kept alive. The theory is that the
outward appearance of stability is what is important.
The idea that any body of law, particularly public law, should appear to
stay put and not be in flux is an interesting phenomenon that Frank has ex-
plored in Law and the Modern Mind. He points out how it is-in law and
in other fields too-that men continue to chant of the immutability of a rule
in order to "cover up the transformation, to deny the reality of change, to
conceal the truth of adaptation behind a verbal disguise of fixity and uni-
versality."'134 But the more blunt, open, and direct course is truer to demo-
cratic traditions. It reflects the candor of Cardozo. The principle of full
disclosure has as much place in government as it does in the market place. A
judiciary that discloses what it is doing and why it does it will breed under-
standing. And confidence based on understanding is more enduring than
confidence based on awe.
Third. From age to age the problem of constitutional adjudication is
the same. It is to keep the power of government unrestrained by the social
or economic theories that one set of judges may entertain. It is to keep one
age unfettered by the fears or limited vision of another. There is in that
connection one tenet of faith which has crystallized more and more as a re-
sult of our long experience as a nation. It is this: If the social and economic
problems of state and nation can be kept under political management of the
people, there is likely to be long-run stability. It is when a judiciary with life
tenure seeks to write its social and economic creed into the Charter that in-
stability is created. For then the nation lacks the adaptability to master the
sudden storms of an era. It must be remembered that the process of con-
stitutional amendment is a long and slow one.
That philosophy is reflected in what Thomas Jefferson wrote about the
Constitution.'35

Some men look at constitutions with sanctimonious reverence, and

deem them like the ark of the covenant, too sacred to be touched.
They ascribe to the men of the preceding age a wisdom more than

134. LAW AND THE MODERN MIND. 293 (1930). Cf. Fortas & Chisholm, The Psy-
chiatry of Enduring Peace and Social Progress, 9 J. Biol. & Path. of InterpersonalRel.
1, 3 (1946).
135. Letter to Samuel Kercheval, July 12, 1816.

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 STARE DECISIS 755

human, and suppose what they did to be beyond amendment. I

knew that age well; I belonged to it, and labored with it. It de-
served well of its country. It was very like the present, but without
the experience of the present; and forty years of experience in
government is worth a century of book-reading; and this they would
say themselves, were they to rise from the dead.
Jefferson's words are a fortiori germane to the fashioning of constitu-
tional law and to the lesser lawmaking in which the judiciary necessarily
indulges.

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