Skip to comments.The Law of Lawlessness (If stare decisis trumps the Constitution, then we don't have one.)
Posted on 11/01/2005 9:49:29 PM PST by nickcarraway
Samuel Alito, appearing with Arlen Specter shortly after his nomination to the court, amiably endured the Pennsylvania senator's lightweight babblings. Expect to be asked about "super-duper precedent," Specter, still enamored with his phrase from John Roberts' hearings, informed Alito. Like Roberts, Alito will no doubt humor this gibberish before the senators. Then hopefully he'll disregard it. Supreme Court Justices take an oath not to stare decisis but to the Constitution. If stare decisis becomes a more fundamental doctrine than the Constitution itself, then we've lost it for good.
The senators' interest in stare decisis as the trumping principle of constitutional interpretation is transparently dishonest. If they take preserving precedent so seriously, why do they routinely call on judges to disregard antique laws and rulings (as in Bowers v. Hardwick)? Indeed, their antiquity -- that these laws preceded our new age of enlightenment -- is treated by these politicians as an argument-ending proof against them. Even more basically, if precedent is so sacred, why isn't the original meaning of the Constitution a precedent worthy of respect?
Stare decisis has become a euphemism for the expectation that justices will bow before those great moments in liberal jurisprudence when the court rejected stare decisis to invent a new right or declare settled laws unconstitutional according to "evolving standards" of indecency. Under this willful construction of stare decisis, a liberal judge who disregards a precedent he dislikes is not in violation of "the doctrine"; only conservative judges who reject precedents of liberal courts can be.
The greatest transgressors of stare decisis are the courts liberal senators herald the most. The Earl Warren court junked 63 prior decisions; the Warren Burger court tossed out 61 decisions.
This revival of interest in the doctrinal authority of stare decisis, then, is nothing more than an attempted consolidation of liberal gains by nondemocratic means and a handy wedge to further divide constitutional interpretation from the Constitution itself. James Madison, called the father of the Constitution, wrote, "There has been a fallacy...in confounding a question whether precedents could expound a Constitution, with a question whether they could alter a Constitution. This distinction is too obvious to need elucidation. None will deny that precedents of a certain description fix the interpretation of a law. Yet who will pretend that they can repeal or alter a law?"
Madison never met Arlen Specter or Ted Kennedy. As far as these senators are concerned, stare decisis is more authoritiative than the Constitution itself and can transform an unconstitutional law into a constitutional one (and vice versa). Specter's "super-duper precedent," in other words, simply authorizes, and gives quasi-intellectual covering, to judicial tyranny, placing the authority of the Constitution not in the hands of a sovereign people who live under it but in the hands of judges whose alterations render it meaningless. Rule by stare decisis is not rule by law but rule by judges.
Stare decisis is not a strict doctrine but an "administrative and social convenience," writes Antonin Scalia. "Courts do not have the time to reconsider every legal issue anew, and citizens cannot confidently plan their actions if what the Supreme Court has said a statute means today is not in all probability what the Supreme Court will say it means tomorrow. (Some modern systems, of course, have not thought this administrative and social convenience worth the trouble, and, in principle at least, forgo the doctrine of stare decisis.) And since it is just an administrative and social convenience, the doctrine of stare decisis is not applied rigidly, as it used to be at common law."
Supreme Court justice William O. Douglas, writing in a 1954 Columbia Law Review article, rejected the idea that a justice has a special duty to adhere to the practice of stare decisis. "It is the Constitution which he swore to support and defend not the gloss, which his predecessors may have put on it," he wrote. Justice Felix Frankfurter wrote that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it."
So when is stare decisis applicable? Only when it involves prior decisions that illuminate the original meaning of the Constitution. Yet this is the one expression of stare decisis its suddenly enthusiastic advocates forbid. In the de facto ongoing Constitutional Convention that is the Supreme Court, justices are expected to ignore those rulings that draw attention to the actual words of the Constitution and cobble together new constitutional rights by picking and choosing phrases from its most recent precedent-busting rulings.
Stare decisis in the hands of judicial activists turns the assumption underlying it upside down: old rulings that safeguard the Constitution receive no respect while relatively fresh misinterpretations of the Constitution, as in Roe v. Wade, assume a sacred air. The perversion of stare decisis is complete when instead of serving the Constitution it becomes a pretext for subjecting it to the most recent judicial whims.
big bump, save to hard drive
Democrats want opinions to trump the Constitution itself.
Wrong. DemonCraps want the Constitution to be totally thrown out.
George Neumayr Ping
Wow! This one is a stone masterpiece. A keeper.
Thanks for the ping.
Roberts made it pretty clear that, while stare decisis should be carefully weighed, it does not trump all other considerations.
That might be true if all prior decisions were equally well evaluated.
However, who would want Kelo upheld on that basis?
Its important to ALWAYS start at the Consitituion and work forward.
Do you have a source for that? Would you want that to apply to a Dem controlled Congress?
BOHICA. Even with Alito, conservatives wouldn't have that strong a majority. If Roe is to be undone, it will be piecemeal.
What an excellent campaign slogan for the Republicans in '06!
I submit to you Roe would be largely moot were it not for philosophical bent of SCOTUS for the last several decades.
Consider the ramifications to our society if over the span of the last fifty years "speech" was interpreted as "that which is spoken."
Can you imagine the influence of the modern liberal if they had to actually assemble their positions into cogent arguments? Or if the doctrine of "no such thing as a false idea" were not operative? Wouldn't you like to be able to bring class action suites against news organizations with a demonstrable intention of manipulating public opinion?
"Stare decisis" is the doctrine of lazy judges. Where is it written in stone that something is necessarily correct just because an earlier decision said it was? Why can't so-called 'case law' be challenged? Where in our Constitution does it provide that case-law is incontrovertable?
Exactly! The same principle operates (at least in MA) when any given issue is the subject of a ballot referendum question. As long as the liberals keep losing, the question shows up year after year (often expressed in progressively more confusing wording); once the liberals win, the subject is closed!
Do you have a source for that?
What I think he means is there were a couple of recent decisions where old English law was invoked. (DNA tests proving a child was not fathered by the husband, but he was required to pay for it never the less).
Since this is English law, being applied by American courts, its not at all clear that there is anything the congress could do about it. If congress created a new law the court might simply declare the new law unconstitutional because the English common law was assumed at the time of the signing of the constitution.
I don't necessarily buy that argument, but I can see where he is going with it.
This inclusion of foreign law is quite worrisome.