“Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation” -James Madison

Thursday, January 12, 2006

Settled Law

We're familiar with the script by now:

1.) Republican president nominates a Supreme Court Justice
2.) Democrats demand during confirmation that the nominee pledges to uphold Roe v. Wade is a matter of "settled law"
3.) Nominee, realizing he/she is dealing with fools, accedes in order to get confirmed.

So the Dems simultaneously want every Supreme Court decision to be "settled law" yet hold the Constitution itself to be a living, breathing document with penumbras and socialist plugins.

Fair enough. Let's look at some "settled law" and see how the dems believe these settled laws exist in today's world.

Minor v. Happersett - 1875
The constitution of the State of Missouri ordains: "Every male citizen of the United States shall be entitled to vote."

Mrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of Missouri, over the age of twenty-one years applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not a "male citizen of the United States," but a woman.

The registrar demurred, and the court in which the suit was brought sustained the demurrer, and gave judgment in his favor; a judgment which the Supreme Court affirmed. Mrs. Minor now brought the case here on error.

Multiple statements are given regarding the 14th amendment and state rights, but the big one is "A provision in a State constitution which confines the right of voting to "male citizens of the United States," is no violation of the Federal Constitution. In such a State women have no right to vote."

Settled law: If a state restricts voting rights to male citizens, then women in that state are not granted federal rights to overpower the state law and thus have no right to vote.

Plessy v. Ferguson - 1886
The statute of Louisiana, acts of 1890, c. 111 provided "separate but equal" accomodations on passenger trains, requiring railway companies to provide separate cars for whites and "colored races".
Plessy, who was "of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood," purchased a 1st-class ticket and boarded a White coach. He was subsequently arrested and imprisoned in a New Orleans jail.

The Court's opinion was that the above-mentioned statute acts "are not in conflict with the provisions either of the Thirteenth Amendment or of the Fourteenth Amendment to the Constitution of the United States."

Settled law: Separate-but-equal is a fact of life, and the darkies better stay in their place.

Muller v. Oregon - 1908
This case was involved in whether or not women could be forced to work in laundries for more than tne hours per day. The Court decided that "This Court takes judicial cognizance of all matters of general knowledge -- such as the fact that woman's physical structure and the performance of maternal functions place her at a disadvantage which justifies a difference in legislation in regard to some of the burdens which rest upon her.

As healthy mothers are essential to vigorous offspring, the physical well being of woman is an object of public interest. The regulation of her hour of labor falls within the police power of the State, and a statute directed exclusively to such regulation does not conflict with the due process or equal protection clauses of the Fourteenth Amendment."

So women's bodies and their reproductive health/viability is in fact a matter of concern where the state and federal government are concerned....the Court has plainly stated that "the physical well being of woman is an object of public interest" in terms of protecting her. Women enjoy the benefit of state power regarding their bodies, but are resistant to their responsibilities to state power?

Settled law: Although this is not directly related to abortion, women's bodies and their physical well-being are in fact a matter of public interest and regulation of such falls within police power of the state.

Buck v. Bell - 1927
1. The Virginia statute providing for the sexual sterilization of inmates of institutions supported by the State who shall be found to be afflicted with an hereditary form of insanity or imbecility, is within the power of the State under the Fourteenth Amendment.

2. Failure to extend the provision to persons outside the institutions named does not render it obnoxious to the Equal Protection Clause.

ERROR to a judgment of the Supreme Court of Appeals of the State of Virginia which affirmed a judgment ordering the Superintendent of the State Colony of Epileptics and Feeble Minded to perform the operation of salpingectomy on Carrie Buck, the plaintiff in error.

Salpingectomy is removal of the fallopian tube, commonly done in conjuction with a complete hysterectomy.

Settled law: Sterilization of the mentally ill and retarded is just fine.

Wickard v. Filburn - 1942
Wheat surpluses led to quotas and limits on production. Wickard planted his wheat not for sale, interstate or otherwise, but entirely for personal home consumption. The Court said:

"A factor of such volume and variability as wheat grown for home consumption would have a substantial influence on price conditions on the wheat market, both because such wheat, with rising prices, may flow into the market and check price increases and, because, though never marketed, it supplies the need of the grower which would otherwise be satisfied by his purchases in the open market."

So what you produce for yourself, with no intent to sell to others, has enough effect on the market to put you under the power of the government's regulations.

Settled law: To each according to his need....

Schenck v. United States - 1919
In 1917, a circular designed to obstruct the recruiting and enlistment draft for WWI was passed around. Evidence of this circular was seized under a search warrant directed against a Socialist headquarters, held admissible in evidence, consistently with the Fourth and Fifth Amendment, in a criminal prosecution against the general secretary of a Socialist party, who had charge of the office. The Court asserted:

"Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done. A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that result, and followed by the sending of such circulars, is within the power of Congress to punish, and is punishable under the Espionage Act."

This case has associations with the current FISA and phonetapping kerfluffle. Wartime implications, anyone?

Settled law: Freedom of speech can be abridged when it involves the national security of this nation.

Scott v. Sandford - 1856
The notorious "Dred Scott" case, in which the Court stated:

"A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States.

When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its "people or citizens." Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being "citizens" within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.

The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.

Settled law: Blacks are not citizens and do not enjoy the rights of citizens. Never have been, and never will be.

So the issues of women's suffrage, equal treatment for blacks, public concern over women's health, prisoner's rights, mental health, and personal freedoms, which are all historically democratic issues, are hereby rendered meaningless by the Left's concepts of "Settled Law." The cases mentioned above are deliberately taken from a time no less than 40 years distant to show how society and its concepts of rule of law have changed and will continue to change. By conforming to stare decisis, each of these decisions must stand.

Most if not all of the decisions above have been overruled in one case or another, and rightfully so. But the point remains -- rulings by the Supreme Court are not engraved in stone, and they are simply another precedent. Stare decisis is a tool, not a commandment. Precedents that are wrong or poorly decided not only are eligible for review but in fact SHOULD be reviewed. The methodology of the Roe decision is every bit as vulnerable as was Plessy, and Plessy's shortcomings were repaired by the case of Brown v. Topeka Board of Education, which explicitly states:

"Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment -- even though the physical facilities and other "tangible" factors of white and Negro schools may be equal......The "separate but equal" doctrine adopted in Plessy v. Ferguson, 163 U.S. 537, has no place in the field of public education....."

In using stare decisis as the dems are now concerning Roe, the Court in 1954 would not have ruled as they did in Brown, and the cancer of "separate but equal" would have become another of these "super-duper" precedents.

The house of cards can only stand one way -- Stare decisis is either absolute or it is not. It can be a guide but should not be a chain. To deny a nominee because he or she does not consider Roe untouchable is not only ignorant of history (especially where Supreme Court decisions are concerned), but is obviously politically dishonest and should not be allowed to participate in any part of the important process of decision-making where lifetime appointments to the Court are concerned.

UPDATE: I found a similar post at Certain Slant of Light regarding stare decisis that is well worth the read. Check it out here.

UPDATE II: Another similar post at Right on the Left Coast. Check it out here.


0 Old Comments: