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The Law of Lawlessness (If stare decisis trumps the Constitution, then we don't have one.)
The American Prowler ^ | 11/2/2005 | George Neumayr

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.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Miscellaneous; News/Current Events; Politics/Elections; US: District of Columbia; US: Pennsylvania
KEYWORDS: alito; constitution; law; roberts; specter; staredecisis

1 posted on 11/01/2005 9:49:31 PM PST by nickcarraway
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To: nickcarraway

big bump, save to hard drive


2 posted on 11/01/2005 9:54:18 PM PST by GeronL (Leftism is the INSANE Cult of the Artificial)
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To: nickcarraway

Democrats want opinions to trump the Constitution itself.

Excellent piece.


3 posted on 11/01/2005 9:55:24 PM PST by Kryptonite (McCain, Graham, Warner, Snowe, Collins, DeWine, Chafee - put them in your sights)
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To: Kryptonite

Wrong. DemonCraps want the Constitution to be totally thrown out.


4 posted on 11/01/2005 9:56:44 PM PST by clee1 (We use 43 muscles to frown, 17 to smile, and 2 to pull a trigger. I'm lazy and I'm tired of smiling.)
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To: nickcarraway
the SCOTUS has set themselves up as the Arbitars of the
doctrine of common law. And it is common law that a law
passed by the Congress cannot overturn.

"I woke up this morning and my country was gone"
"Yesterday is a different place, they do things differently
here"
5 posted on 11/01/2005 9:56:44 PM PST by p[adre29 (Arma in armatos)
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To: nickcarraway
When there are multiple possible decisions one could issue which would comply with regulations, statutes, treaties, and the Constitution, a judge should typically use stare decisis to select among them. If and when, however, stare decisis would suggest something other than what the regulations, statutes, treaties, or Constitution require, it should be disregarded.
6 posted on 11/01/2005 9:57:43 PM PST by supercat (Don't fix blame--FIX THE PROBLEM.)
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To: Canticle_of_Deborah; Lancey Howard; maryz

George Neumayr Ping


7 posted on 11/01/2005 10:02:46 PM PST by nickcarraway (I'm Only Alive, Because a Judge Hasn't Ruled I Should Die...)
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To: nickcarraway
Dred Scott was stare decisis for many years.
8 posted on 11/01/2005 10:04:26 PM PST by adamsjas
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To: nickcarraway

Wow! This one is a stone masterpiece. A keeper.
Thanks for the ping.


9 posted on 11/01/2005 10:05:36 PM PST by Lancey Howard
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To: nickcarraway

Roberts made it pretty clear that, while stare decisis should be carefully weighed, it does not trump all other considerations.


10 posted on 11/01/2005 10:06:07 PM PST by Fenris6 (3 Purple Hearts in 4 months w/o missing a day of work? He's either John Rambo or a Fraud)
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To: supercat
When there are multiple possible decisions one could issue which would comply with regulations, statutes, treaties, and the Constitution, a judge should typically use stare decisis to select among them.

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.

11 posted on 11/01/2005 10:07:03 PM PST by adamsjas
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To: nickcarraway
These idiots should be asked how slavery was abolished and voting rights were established for blacks and women (among other things)...

It wasn't by keeping legal precedence...
12 posted on 11/01/2005 10:07:25 PM PST by DB ()
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To: p[adre29
And it is common law that a law passed by the Congress cannot overturn.

Do you have a source for that? Would you want that to apply to a Dem controlled Congress?

13 posted on 11/01/2005 10:23:35 PM PST by Ken H
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To: nickcarraway
If stare decisis becomes a more fundamental doctrine than the Constitution itself, then we've lost it for good.

BOHICA. Even with Alito, conservatives wouldn't have that strong a majority. If Roe is to be undone, it will be piecemeal.

14 posted on 11/01/2005 10:43:31 PM PST by Carry_Okie (There are people in power who are truly evil.)
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To: nickcarraway
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.

What an excellent campaign slogan for the Republicans in '06!

15 posted on 11/01/2005 10:46:36 PM PST by sourcery (Either the Constitution trumps stare decisis, or else the Constitution is a dead letter.)
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To: nickcarraway
"Stare decisis" is the modern demagogue's code phrase for "I stole it fair and square."
16 posted on 11/01/2005 10:48:22 PM PST by papertyger
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To: Carry_Okie
If Roe is to be undone, it will be piecemeal.

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?

17 posted on 11/01/2005 11:01:16 PM PST by papertyger
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To: nickcarraway

"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?


18 posted on 11/01/2005 11:07:39 PM PST by TheCrusader ("The frenzy of the Mohammedans has devastated the churches of God" -Pope Urban II, 1097AD)
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To: nickcarraway
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.

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!

19 posted on 11/02/2005 12:22:03 AM PST by maryz
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To: Ken H; p[adre29
And it is common law that a law passed by the Congress cannot overturn.

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.

20 posted on 11/02/2005 12:56:28 AM PST by adamsjas
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To: TheCrusader
"Stare decisis" is the doctrine of lazy judges.

Bingo.

What I really dislike is the notion of a “Constitutional scholar” who is educated by studying only that and not what the Constitution actually says.

I think the first year of law school should require the exclusive study of an unabridged English dictionary, terminology and logic.

The rest of the time should be spent in jail. Since so many lawyers are crooks, at least they can get a good start at making connections and get to know their chief clientele better...

21 posted on 11/02/2005 1:01:04 AM PST by Sir Francis Dashwood (LET'S ROLL!)
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To: TheCrusader
Where in our Constitution does it provide that case-law is incontrovertable?

A very good point, especially when case law can render the meaning of a written law to be exactly the opposite of what the legislature wrote.

I was dealing with a member of our legislature here, and quoted the exact statute under discussion. It was very clear language.

Her response: Do you have an opinion that supports that interpretation?

I said no, because it was just passed last year (when she herself voted for it). She refused to accept the common meaning of the language until there was a court case. Just Unbelievable. (Yes, she was a Democrat).

22 posted on 11/02/2005 1:01:55 AM PST by adamsjas
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To: nickcarraway

stare decisis is but potentially the wolf of enshrined relativism in legal sheeps clothing...


23 posted on 11/02/2005 1:04:18 AM PST by DBeers ()
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To: nickcarraway

Under the theory set forth here, a sub-supreme court judge has a Constitutional duty to ignore stare decisis if he believes the supreme court's ruling is wrong. I like the principle of this--the appellate courts get lots of business if intelligent and principled judges disagree with the supreme's decision, which seems to me to be a good feedback mechanism. But most judges are natural kiss butts who don't relish being overruled. Stare decisis not only serves the supreme bullies in perpetuating their abuse of power, but also gives lower judges the excuse for adopting a to-get-along, go-along attitude in lieu of thought and principles.


24 posted on 11/02/2005 1:10:10 AM PST by PeoplesRepublicOfWashington (Dream Ticket: Cheney/Rice '08)
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To: nickcarraway
This article nails it. It is obvious to anyone who thinks about the Constitution and the Court, but not everyone has the time to do so.

Inconsistency, thy name is liberalism.
25 posted on 11/02/2005 3:04:46 AM PST by marktwain
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To: adamsjas
Interestingly enough, Dred Scott is still the law of the land in one respect -- and rightly so. The basic point of that decision was that a "non-person" has no standing to file suit in Federal court, and that remains unchanged even though the determination that a black man was a "non-person" was utterly disgraceful.

A lawyer, for example, cannot file a suit in Federal court on behalf of a dog or cat.

26 posted on 11/02/2005 3:17:20 AM PST by Alberta's Child (I ain't got a dime, but what I got is mine. I ain't rich, but Lord I'm free.)
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To: papertyger
Wouldn't you like to be able to bring class action suites against news organizations with a demonstrable intention of manipulating public opinion?

I've been saying for years that it's only a matter of time before someone brings a class action lawsuit against a publication for journalistic malpractice. I even sent an e-mail to one publication who published an incoherent article about a crime committed with a "bolt-action Mauser assault weapon", warning that such a thing was going to happen to them some day, and I couldn't wait. The article was corrected within hours.

27 posted on 11/02/2005 3:38:13 AM PST by Hardastarboard
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To: nickcarraway

The Dred Scott decision, allowing slavery, should still be in place if Supreme Court decisions can never be changed. This is obviously a lie to save the hideous Roe decision.


28 posted on 11/02/2005 3:42:02 AM PST by kittymyrib
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To: Alberta's Child

But then, neither a dog nor a cat can be charged with assault or murder. Somehow that principle didn't get transferred over to these non-persons with very much diligence.


29 posted on 11/02/2005 3:44:01 AM PST by The Red Zone (Florida, the sun-shame state, and Illinois the chicken injun.)
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To: nickcarraway
This is similar to the logic in Marbury v. Madison, except instead of comparing past Court decisions with the Constitution, Marshall was comparing statutory law with the Constitution.

The most often cited phrase in the most often cited case in US jurisprudence is Marshall's "It is emphatically the province and duty of the judicial department to say what the law is." But that statement is radically misconstrued, to a meaning exactly opposite that which Marshall meant. That statement does not make a power, it circumscribes a limit on judicial power, as is clear from "reading on."

So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

And in that expression, the courts are subordinate to BOTH, the law and the Constitution. "To say what the law is" does not mean for the court to make the law. Anybody who has the intellectual honesty to "read on" will come to the same conclusion.

But it is no surprise, in our outcome-based society, that courts too will be outcome-based, and throw principle to the wind.

30 posted on 11/02/2005 3:54:56 AM PST by Cboldt
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To: supercat; All

(I posted this on a different thread):

Speaking of Alito, and Roberts as well for that matter...some have suggested that neither man would, under almost any conceived circumstances, vote to overturn Roe. They say you can tell that by their very restrained, very precedent- respectful, very careful jurisprudence, and by their own demeanors and personalities. These prognosticators come from both sides of the political spectrum.

I would like to know what others think of this analysis of the two men.

?

(Seems relevant to this thread. Anyone want to weigh in?)


31 posted on 11/02/2005 3:55:24 AM PST by txrangerette
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To: DB
These idiots should be asked how slavery was abolished and voting rights were established for blacks and women (among other things) ...

Civil war and Constitutional amendment. Howver, the author's point stands - as between the COnstitution itself, law, and past decisions, one MUST be given superior weight; and the only intellectually honest resolution is to give superior weight to the Constitution itself.

32 posted on 11/02/2005 4:00:11 AM PST by Cboldt
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To: kittymyrib
The Dred Scott decision, allowing slavery, should still be in place if Supreme Court decisions can never be changed.

It has never been overturned by the Court. It was rendered powerless by the 14th amendment, proving that the Constitution trumps Court opinions.

33 posted on 11/02/2005 4:03:55 AM PST by Cboldt
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To: nickcarraway
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 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.

If it is a ruling supporting previous rulings that I agree with, Stare Decisis was applied correctly. If it is a ruling supporting previous rulings that I do not agree with then it is a perversion?
Why do they routinely call on judges to disregard antique laws and rulings …

They should not. The judiciary is not the place to make or change law – if the law is truly outdated, change or (preferably) repeal the law.
34 posted on 11/02/2005 4:26:16 AM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
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To: DB
These idiots should be asked how slavery was abolished and voting rights were established for blacks and women (among other things)...

It was accomplished by changing the law, not by court edict.
35 posted on 11/02/2005 4:28:21 AM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
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To: kittymyrib
The Dred Scott decision, allowing slavery, should still be in place if Supreme Court decisions can never be changed

Dred Scott did not “allow slavery”. The court decided that all people of African ancestry -- slaves as well as those who were free -- could never become citizens of the United States and therefore could not sue in federal court. This was changed by the 14th Amendment:
“Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

36 posted on 11/02/2005 4:35:09 AM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
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To: nickcarraway
Rule by stare decisis is not rule by law but rule by judges.

That's why Libs are so insistent it is the trump card to the Constitution.

Excellent analysis!

37 posted on 11/02/2005 5:00:53 AM PST by Gritty ("Rule by stare decisis is not rule by law but rule by judges" - George Neumayr)
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To: nickcarraway

bttt


38 posted on 11/02/2005 5:19:06 AM PST by Christian4Bush ("A gov't big enough to give you all you want is a gov't big enough to take all you have." G.Ford)
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To: R. Scott

Oh fine, make me the idiot... ;-)


39 posted on 11/02/2005 5:58:25 AM PST by DB ()
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To: DB

Not an idiot – just not well informed in a specific area.


40 posted on 11/02/2005 6:18:21 AM PST by R. Scott (Humanity i love you because when you're hard up you pawn your Intelligence to buy a drink.)
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To: adamsjas
A SCOTUS decision is the law of the land ie Common Law.
Because the Court has granted itself the sole arbiter of
what the Constitution means Congress cannot then overturn
the meaning of the Constitution.

That is one of the reasons that Kelo just cannot be
legislated away. Once the Court has spoken it is settled
Stare Deisis and only the Court can go back and change what
it has said the Constitution has to say about Kelo.
41 posted on 11/02/2005 7:06:15 AM PST by p[adre29 (Arma in armatos)
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