By Selwyn Duke
In the wake of Roe being aborted, some liberal politicians, such as senators Joe Manchin (D-W.V.) and Susan Collins (R-Me.), are crying foul because they claim that SCOTUS justices Brett Kavanaugh and Neil Gorsuch deceived them over stare decisis (respect for precedent) during confirmation hearings. What’s unsaid is that stare decisis is itself a deception. In fact, our Founders would be aghast at the standard. Why? It’s simple:
If a precedent clearly conforms to the Constitution, then regard for stare decisis is unnecessary for a precedent-aligned ruling; all a justice need do is reference the Constitution and he'll vote incidentally in accordance with the precedent.
If the precedent doesn't conform to the Constitution, it is then illegal and should be overturned, which a justice will vote to do if he, again, references the Constitution.
But here’s what hasn’t been said: In complaining they were deceived by Gorsuch and Kavanaugh, Manchin and Collins are in glass houses with millimeter-thick walls.
For they are violating their oaths.
Upon assuming office, the senators took an oath to uphold the Constitution.
They did not take an oath to uphold precedent.
Yet when they make adherence to stare decisis a prerequisite for SCOTUS confirmation, they’re seeking to ensure that their chosen justices will place precedent before the Constitution. They are thus violating their oath of office by proxy.
(And, of course, our politicians routinely violate their oaths directly by supporting unconstitutional legislation.)
In reality, consulting precedent is only necessary for a judge if he’s sincerely unsure of what a constitutional provision dictates in a given case and wishes to benefit from past wisdom; in such an event, however, precedent is merely part of historical analysis and study, not a constraining stricture.
As for the near deification of precedent called stare decisis, it actually is a con (and some of its proponents are no doubt conning themselves; i.e., rationalizing). We’ll hear that Roe was unassailable “precedent” because it had been in place for 49 years, even though not having Roe and leaving abortion to the states was precedent for the better part of 200 years before then. What’s more, Plessy v. Ferguson (separate but equal opinion) was “precedent” for 58 years until Brown v. Board of Education. Should it have been respected and kept in place, senators Manchin and Collins?
It’s all the more laughable when considered thus: We can have a precedent such as marriage being a state matter for more than 200 years. Then, five long-in-the-tooth, black-robed lawyer zealots get caught up in sexual fashions, get into their heads that they should impose some perceived good, and completely violate this standard (i.e., Obergefell v. Hodges, 2015). And we’re supposed to respect their newly minted precedent over what preceded it...why?
The truth is that the Court has reversed its own precedents 145 times. So whence comes this regard for stare decisis?
Well, the Left wouldn’t have valued precedent ages ago because, with court rulings having been more “traditionalist,” it wouldn’t have served their ends. Now, after years of judicial activism having delivered an arsenal of decisions facilitating their agenda, we hear, “Oh, no! You can’t touch these judicial opinions. Stare decisis today, stare decisis tomorrow, stare decisis forever!” Yeah? Tell it to the judge.
In the final analysis, liberal senators will sanctimoniously give SCOTUS nominees the third degree about whether they as justices would uphold stare decisis, as if it’s some sacred legal principle. But the onus belongs on them. They’re demanding that judges become proxies for their constitutional trespass. This is shameful, and it alone should disqualify them from office.
Of course, politicians also like judicial activism on hot-button issues because they can then wash their hands of the matter and say “That’s it — the courts have ruled!” These politicians consequently won’t have to take a stand on the controversial issues and risk increased election-time voter ire.
But with Roe no mo‘, Manchin now may end up with a bill banning abortion on his desk. He’ll then have to sign it and incur the wrath of the Party of Death (formerly the Democrats), or veto it and explain to West Virginians why he’s governing like a Californian. But, hey, maybe he can just point to precedent — there have been, after all, plenty of phony politicians before him.
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Exactly what does the Constitution say about abortion ? Absolutely nothing ! Making abortion illegal again in individual US states will no more stop women from seeking and obtaining abortions any more than Prohibition stopped Americans from drinking alcohol .
And before Prohibition, what did the Constitution say about the legality of consuming alcoholic beverages ? Absolutely nothing . And the founders, who certainly loved to drink wine and beer , would have been horrified to see our government make liquor illegal .
And ruthless gangsters such as Al Capone and others had a field day raking in the money through bootleg liquor .
It will be the same with abortion in the states that make it illegal . Dangerous back alley abortionists will make a lot of money by endangering the lives of so many pregnant women, and kill or nearly kill them, and the porest ones will kill themselves trying to self abort .
And women who are wealthy enough will easily fly off to Canada Europe or elsewhere for safe legal abortions . Roe v Wade was not the beginning of abortion in America. It was the end of women DYING from abortions .
Posted by: Robert Berger | June 30, 2022 at 01:50 PM