Thursday, November 27, 2008

More Thoughts Sparked by Scalia

And speaking of Scalia, he sparked another thought.

If one believes in a living constitution (as most liberals seem to), then why is stare decisis (e.g., abiding by precedent) such a big deal? What if life changed between the previous ruling and this one? Should not the constitution change as well?

It comes to my mind because judicial nomination hearings always involve lengthy pontifications on whether or not a nominee believes in stare decisis. Of course, that is code for "Will you overturn Roe?"

Ironically, these questions of course come from the same group who didn't mind ignoring stare decisis when it was Plessy vs. Ferguson that was overturned, and rightly so.

So if stare decisis was not important in granting equal status to a certain class of American citizens, then why is it important in denying equal status to another certain class of American citizens?

If the court can overturn precedent to grant equal status to Black Americans, why cannot it overturn precedent to grant equal status to unborn Americans?

1 comment:

Frank Sansone said...

Huh? "Speaking of Scalia"? Is there a missing post somewhere that addresses Scalia?

I agree that it is inconsistent to hold strongly to the unchangeable nature of settled rulings while at the same time arguing that the Constitution itself is a changeable and living document.

FWIW, I agree that the constitution is a changeable document - but it gives instructions on how to change it - it is called the Amendment process.