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Is the Natural Law Tradition Compatible with Precedent?

Professor Lee Strang explains that the concept of stare decisis is not necessarily in tension with the natural law tradition. Natural law provides a basis or a framework for interpreting the Constitution but practical applications of the law require more detail than can be provided by the Constitution alone. Professor Strang discusses the example of how Congress and the Supreme Court used the few words of the interstate commerce clause to develop specific legal rules that governed relationships between the states. https://youtube.com/watch?v=_xwAmdi0WDk


It's always been the case in the American legal system that judges, both state and federal, have created and then later followed precedent. Not uniformly, but stare decisis is this nudging, is this instruction, is this weight, this gravitational pull that later judges feel. And from the natural law tradition, what you see is that the goal of the Constitution is to secure the common good. The common good is the ability of Americans to live together in relative peace. In the technical language, to coordinate our activities with one another. The spare original meaning of the text of the Constitution can't do it by itself, and that it needs to be implemented, it needs to be fleshed out, it needs to be built out through other mechanisms, and in our system, I think wisely, precedent is that key system. So, I'll just give you an example. In the 19th century, you started having the phenomenon of railroads, and you had people in one state manufacturing a product, putting that product on a train car, traveling through a series of states to a destination where it was going to be sold in a retail location. And the question the Supreme Court faced was - can a state along the route over which the product traveled on the railroad cars regulate that product? And the cases came out, for example, from the issue of gambling. So in the 19th century, some states allowed gambling, some states didn't allow lotteries, for example. And so can a state that doesn't allow lotteries proscribe the transportation of lottery tickets manufactured in one state across that state's boundaries to a destination state that does allow lotteries? And what the Supreme Court held was an application of the meaning of the interstate commerce clause. Now, the interstate commerce clause, as I said, is just a few words, and what you see in these series of cases in the 19th century, the Court came up with the original packages doctrine. The original packages doctrine is the idea that the interstate commerce clause authorizes Congress, and not the states, to regulate the transportation of commercial goods across state lines in their original packages. So if the lottery tickets were in their original packages from the manufacturer across state lines, then the transporting state could not regulate those lottery tickets, couldn't ban those lottery tickets. Now that conclusion, I don't think, is necessarily obvious to somebody who looked at the original meaning of the commerce clause, but we needed, as a legal system and as a country, an answer to that kind of a question. To the question of what's the relative regulatory authority of states over these packages crossing their state lines, and the Supreme Court, in that precedent, came to a conclusion, applied the original meaning. That precedent, that conclusion itself became a part of American positive law, which had stare decisis effect, which then later continued to be applied up to today. And so I think what you see from the natural law tradition is that the stare decisis is a key mechanism for the Constitution's original meaning to coordinate Americans, to coordinate American states, American officials, and that the natural law tradition allows us to see that the whole point of the legal system is coordination. And so stare decisis plays an important role in that tradition.

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