Common error is never law, even when repeated many times

Today’s “ignore-the-text”—“read-the-cases” approach is particularly inappropriate in constitutional cases, because it serves only to perpetuate error. As the late Harvard Law Professor Raoul Berger rightly reminded us, “Too much discussion of constitutional law is centered on the Court’s decisions, with not enough regard for the text and history of the Constitution itself. We need to recall Justice Gibson’s great statement in 1825:

‘[I]n [constitutional] questions . . . , precedents ought to go for absolutely nothing. The Constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine^[1] . . . the judge who asserts [the right of judicial review] ought to be prepared to maintain it on the principles of the Constitution.’”^[2]

“Communis error” means “Common error repeated many times makes law.”^[3] We’ve had a whole lot of communis error in our modern judiciary—not that it’s an altogether new phenomenon. It’s an ancient malady. The sardonic Swift characteristically described it as:

“a maxim among lawyers that whatever hath been done before may be done again, and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions, and the judges never fail of directing them accordingly.”^[4]

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^[1] “In limine”: “on or at the threshold; at the very beginning”, Black’s Law Dictionary (“BLD”) 5^th Ed. at 708.

^[2] Government by Judiciary, The Transformation of the Fourteenth Amendment, Harvard University Press, Cambridge, Mass., (1977) 1^st Ed. pp. 296-97 @ http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&Itemid=99999999. (2^nd Ed.) Justice Gibson’s statement is found in Eakin v. Raub, 12 S. & R. 330 (Pa. 1825) http://www.enotes.com/american-court-cases/eakin-v-raub.

^[3] BLD at 254.

^[4] Swift, Jonathan, “A Voyage to the Country of the Houyhnhnms”, pt. 4, ch. 5, Gulliver’s Travels (1726) @ http://books.google.com/books?id=n8oVAAAAYAAJ&dq=%22a+maxim+among+lawyers %22+Swift&source=gbs_navlinks_ at p. 200.