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VOL. 8, NO. 2Feb. 8, 2006
"Who Ultimately Rules-the Courts or the Constitution?"
By Virginia Armstrong, Ph.D., National Chairman

The U. S. Supreme Court now has a full complement of nine Justices. Two new Justices, Chief Justice John Roberts and Associate Justice Samuel Alito, have just assumed their seats. We may expect that the Court will now move a bit in the direction of the Judeo-Christian value system. But how far — and even if this will happen — remain to be seen. The Court's future direction depends in large measure on the way current Justices address the issues we've raised before — the issues of "stare decisis" or "precedent" (the alleged controlling power of previous court decisions over current ones) v. faithful adherence to the U. S. Constitution, properly interpreted and applied. The issue of "precedent" (actually, the "courts") v. the Constitution has ignited some of the most acrimonious debates in judicial nomination hearings since George Bush assumed the presidency. The fires have been fueled to an even hotter pitch by recent federal court decisions. In Ayotte v. Planned Parenthood, the U. S. Supreme Court returned to the U. S. First Circuit Court of Appeals for further consideration New Hampshire's Parental Notification Prior to Abortion Act which the Circuit Court had invalidated. Also in recent months, three other federal Courts of Appeals (for the second, eighth, and ninth circuits) have invalidated the national ban on partial-birth abortions, paving the way for a Supreme Court hearing on this issue.

In these and other abortion cases, federal judges may insist on upholding court decisions (precedents) rather than the Constitution. But what does this really mean? If the Court adheres strongly to much of its existing case law, America will plunge faster and farther into a constitutional and moral abyss. If the majority of judges relies on precedents — prior court decisions — rather than the Constitution properly understood and applied, we will become more and more a government of men — a government of lawlessness — rather than a government of laws.

A court's over-reliance on "precedent" creates several DEADLY DANGERS for America. One type of danger involves consequences for the CULTURE. The second type of danger involves consequences for our CONSTITUTIONAL SYSTEM.

  1. CULTURAL DANGERS are the most visible and recognizable by the public. A precedent-bound Court would uphold previous Court rulings supporting sodomy, abortion (including the grisly partial-birth abortion form of murder), anti-Christian religious freedom decisions, and support for the exclusive presentation of evolutionism and the total censorship of creationism (to name just a few of the cultural results). Is this the America in which we want to live?

  2. CONSTITUTIONAL DANGERS created by an excessive judicial reliance on precedent include erosion of critical characteristics of our constitutional system, of core concepts of American law, and undermining of the Constitution itself. When court decisions trump the Constitution, we lose the "3Cs" — critical characteristics which any legal system must embody if it is necessary to survive and thrive. These characteristics were identified and exhaustively analyzed by the preeminent legal scholar, H.L.A. Hart, in his writings in the latter Twentieth Century. The "three Cs" are certainty, consistency, and continuity.

"Certainty" means that laws (or court decisions) can be objectively and clearly understood. "Consistency" means that no individual judicial decision should contain one portion that conflicts with another portion. Similarly, judicial decisions at a particular point in time, should not contradict one another. If either condition exists, "inconsistency" marks the legal system. The critical characteristic of "continuity" requires that a legal system must consist of continuous judicial decisions. That is, current decisions must be consistent with past decisions unless there is authoritative, compelling reason for change in the decisions (the most important reasons being that the U. S. Constitution demands the change).

In this "Court Watch Briefing" we examine "certainty." Judicial commitment to stare decisis has created chaos, not certainty, in many areas of American law. Nowhere is this phenomenon more obvious than in the Court's abortion decisions. Ironically, Roe v. Wade, the linchpin of abortion law, was itself without precedent. But the Court has clung to Roe with the tenacity of a pack of judicial bulldogs. In order to do so, the Supremes have had to resort to a variety of uncertain concepts and doctrines in post-Roe abortion decisions. For example, the Court in the last couple of decades has adopted the "undue burden" standard which was created by Justice O'Connor to determine whether an abortion regulation is constitutional — whether or not it imposes an "undue burden" on a woman's right to an abortion. But what on earth is an "undue burden"? It is whatever the judges want it to be, and CERTAINTY in law is buried.

Surely one of the most egregious examples in history of an uncertain, judicially-created concept is the assertion by three Justices (not even a simple majority would agree on this one!) in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). To clarify for all the rest of us what is meant by the Constitution's word "liberty" in the Fourteenth Amendment, Justices Kennedy, Souter, and O'Connor penned the "mystery passage": "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This statement would have to be a top contender in any contest to determine the most uncertain statement ever made by the Supreme Court. Again, CERTAINTY is buried as the Supremes attempt to implement stare decisis in cases following Roe.

In later "Court Watch Briefings," we will examine further the CONSTITUTIONAL DANGERS created by federal courts' excessive devotion to the rule of precedent.

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