Editorially Speaking Stare Decisis And The Gored Ox Stare decisis is a Latin phrase that defines a legal doctrine that says, in general, an issue once decided should stay decided and not be revisited. It’s a term we’ve heard over and over again in connection with the John Roberts and Sam Alito nominations to the Supreme Court. However, the left’s commitment to stare decisis is quite selective. In fact, many of the Supreme Court’s decisions have overruled prior case law. As John Hinderaker wrote in a recent Weekly Standard column:
Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence’s violation of that principle (“Progressivism’s Alamo: Why stare decisis has become so important to the liberal project,” 01/18/2006).He went on to say:
When liberals talk about a “living Constitution,” what they really mean is a leftward-marching Constitution. Liberals—especially those of an age to be senators—have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: “conservative” precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct.
Over the last 25 years, however, the ground has shifted. History stopped moving inexorably to the left and began to reverse course. The conservative movement achieved electoral success under Ronald Reagan in the 1980s. It took a while longer for the conservative trend to reach the judiciary, but it’s no coincidence that a number of conservative federal judges, including John Roberts and Sam Alito, got their start in Reagan’s White House or Justice Department. Now, 20 years later, they are eligible for elevation to the Supreme Court.
So the left’s natural preference for a “living Constitution” has turned into a two-edged sword. Liberals can no longer assume that constitutional change will move in only one direction. Hence their newfound reverence for precedent. That reverence, while certainly selective, is not entirely insincere, and is not only about abortion. If we draw back from the buffoonery the Senate Democrats sometimes exhibited last week, we can see a more poignant scene: an old guard trying, with more resignation than hope, to hold on to its last redoubt.
When a liberal court in Roe v. Wade (1973) overturned 200 years of American jurisprudence, finding in the so-called “penumbra” (that’s the shadows, folks) of the Constitution a “right to privacy” that they said granted a mother and her trusted physician permission to kill (murder) a yet unborn child in the mother’s womb, the left applauded the Court for its innovative and progressive thinking. It mattered not then nor now that most everyone, left or right, were stunned at the Court’s reversal of well established precedents respecting the sancity of life in favor of the mother’s “right” to abort her unborn children, a decision that was nothing less that a complete usurpation of Congress’ right to make law by creating their own law by mere judicial fiat. Now, 33 years and 50 million unborn lives later, those who applauded and are currently touting the Court’s very unconstitutional Roe v. Wade decision, are the same ones trying to do everything in their power to make sure Roe v. Wade isn’t overturned by appealing to stare decisis and “super-dooper precedent.” How much more hypocritical can these folks get? Do they have no shame?
A Nation Without God When the drafters of the Declaration of Independence wrote, “We hold these truths to be self-evident,” they were writing of the kind of phaneros en autois (“evident in themselves”) truths the apostle Paul was writing of in Romans 1:19. As a matter of fact, in Romans 1:20, the words tois poiemasin nooumena kathoratai (“by means of things that are made, are understood, being clearly seen”) are the exact equivalent to “self-evident.” Paul uses both of these phrases in the context of what men know naturally by natural revelation, apart from the special revelation revealed in God’s Word. According to Paul, what can be known about God apart from the Bible is known by all men, because He causes them to know it. Therefore, all men are without excuse. But, although men know the truth, the Bible tells us they are bent on suppressing it in unrighteousness (cf. Romans 1:18). In other words, we can’t expect our opponents to be honest. If they have to lie about this nation being founded upon the principle that there is a “law above the law” (i.e., God’s law above man’s law), then they will lie. For example, during the bicentennial celebration of the U.S. Constitution in 1987, I was appalled when, watching the proceedings on television, I heard the reciting of the Pledge of Allegiance with “under God” left out.
This is made even more appalling when one considers that Thomas Jefferson, who a secularist would proudly call his own, is reported to have said: “The God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?” Doesn’t this sound like Jefferson thought the nation he was instrumental in founding ought to be a nation under God?
Furthermore, as recently as 1952, in Zorach v. Clauson, U.S. Supreme Court Justice William O. Douglas wrote, “We are a religious people whose institutions presuppose a Supreme Being.” If an extremely liberal Supreme Court justice can understand this, then why is it becoming so difficult for people to understand that ours is a nation that was founded by our forefathers to be under God? In truth, it would not be difficult at all if it were not for those who “suppress the truth in unrighteousness.”
In Psalm 11:3, the question is asked, “If the foundations be destroyed, what can the righteous do?” Of course, when the foundations are destroyed, the righteous are made a prey of the wicked. Consequently, the very purpose of government is the protection of the righteous or law abiding. In other words, Government is ordained by God as a mechanical remedy against evil (cf. Romans 13:1-7). Thomas Jefferson clearly understood this principle, and so must we if we are to keep the “unalienable rights” endowed us by “our Creator.” Jesus Christ is sovereign of the universe. Consequently, His law is above all laws and all men everywhere are subject to His authority. Many earthly authorities have not understood this. Consequently, they have not heeded the wise counsel of the psalmist, who said: “Serve the Lord with fear, and rejoice with trembling. Kiss the Son, lest He be angry, and you perish in the way” (Psalm 2:11,12).
We have had the opportunity to see the political walls of atheistic communism crumble. In this, we have been privileged, I think, to observe the Lord’s divine providence at work. But, even if this is not the case, let the men and women of all nations soberly reflect upon the eminent advice of Proverbs 14:34, “Righteousness exalts a nation, but sin is a reproach to any people.”
The reproach (i.e., disgrace and shame) openly being manifested in America today is indicative of the fact that we are quickly becoming a nation without God. Frankly, what this means is that the continued existence of this country is at stake. It may be that God usually judges individuals at the end of time, but the Bible clearly teaches that He judges nations in time. In Romans 1, the apostle Paul gives the four step decline in the history of the nation that forgets God:
- A nation rejects God,
- it turns to false religion,
- it becomes bogged down in immorality and violence,
- and then God judges it.
Consequently, a nation without God is a nation in serious trouble.
As a people (I’m speaking now of God’s people), let us be actively engaged in doing justice and righteousness, and let us be praying that there is still enough salt left to preserve the blessings of God upon this nation. If there is, then Roe v. Wade will be overturned. But if not, God will take this nation down to the pit.
(All editorials are written by Allan Turner. You can contact him at allan@allanturner.com )
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