I have a question for you dear members of the creative minority.
As you may know, at yesterday’s confirmation hearing Sotomayor quickly volunteered that abortion rights are settled law but refused to comment about gay marriage. How much more settled can the definition of marriage get? It hadn’t changed for the history of civilization, but that is not good enough. A very controversial 5-4 decision in 1973 – settled. A 5,000 year old definition of an institution – not settled. Gotcha. Very unsettling.
It should come as no surprise that I believe that the absurd notion of gay marriage undermines the institution of marriage and ultimately the building blocks of society (as is its aim). Anyway, besides abortion – which laws or judicial mandates in the last 50 years or so have been the most destructive to society as a whole?
I struggle to think of anything more destructive than no fault divorce. What do you think?
July 16, 2009 at 6:12 am
Unfortunately, she's not entirely wrong in saying what she said.
Within the context of American law (and I want to emphasize that's the sole realm of this comment…mostly I think that the principle is adhered to far to strictly) stare decisis – the principle that precedent has the effect of "settling" law – would suggest that abortion is a settled area of law. Not only is Roe v. Wade on the books, but it has spawned a substantial number of cases over the years that have abrogated, modified, or added to that one case – but ever and anon upheld the fundamental premise that abortion is a right.
Conversely, to my knowledge there isn't a lot of case law explicitly referring to gay marriage, and so it would not be so settled. There are various avenues that a court might use in applying existing precedents that, they might argue, are related to the "core question" of gay marriage, but they have yet to be dealt with dispositively or through a sufficient number of cases for a precedent to emerge.
Now I'm going to step out of my little world and say that there is precedent for precedent being overturned, and I hope that it comes to that. Somehow I doubt it, but a fellow can hope. Republicans always seem to end up being shafted by their court nominees, and I think it would be lovely if it could happen to a Democrat at some point down the road.
July 16, 2009 at 7:16 am
The problem is with the system of "precedent" as a whole, but unfortunately on this she's right..
GOd willing "precedent" will be overturned as it has in the past
July 16, 2009 at 12:01 pm
Patrick,
I'm not trying to be snotty, but Roe v Wade was a 7-2 decision — not 5-4.
However, the next question from the panel should have been, "Was separate but equal 'settled' law since it was enshrined for 60 years before being overturned?" Or maybe, "Please explain why Dred Scott, which was settled law, should or should not have been revisited."
July 16, 2009 at 12:34 pm
Folks,
I was not commenting on the use of stare decisis, but rather remarking on the absurd notion of settled vs unsettled. The definition of marriage could not be more settled – until someone decided it wasn't.
I then followed with a question that nobody seems rather interested in. Oh well.
July 16, 2009 at 1:37 pm
I would agree that no fault divorce, bastard child of the equally destructive "sexual revolution" e.g. contraception and a rending of the moral fabric of society, have brought us to this point where SSM is even an issue. All of this is what Tony Esolin over at Mere Comments calls, "pseudogamy."
July 16, 2009 at 2:32 pm
As they say at Southern Appeal, stare decisis is fo' suckas!
July 16, 2009 at 3:36 pm
Oh yeah, it's settled. Who doesn't remember when they discovered the Jefferson letters that it was originally "Life, Liberty, and the pursuit of Property plus abortions," but they changed it because the South just wasn't progressive enough.
And who could ever forget the rallying Feminist speeches of the 1970's, when we as a nation voted to clarify the constitutional right with that extra Amendment, as we were finally ready as a Nation for the beauty that is killing babies.
I mean, I would certainly hate for the awesome right of Abortion to have come from a confusing, irritating "Right of Privacy," or that it couldn't be a State decision because "Who can afford a bus," or that the reason there are so many Abortion laws is because they slowly had to chip away from "Rarely" to "Sometimes" to "All the time." Why, if I lived in that Nation, I might be pissed off at all this. But I don't, so whew!
July 16, 2009 at 4:13 pm
Stare Decisis is kind of like the legal version of Sola Scriptura. Progressives use it to unhinge positive law from natural law so they can invent stupid (and evil) things that don't really exist like gay marriage and the right to murder your children. The courts are usurping power from the citizens by granting themselves the ability to invent new rights and laws from out of the ether.
July 16, 2009 at 7:38 pm
I didn't really know the definition of "no fault divorce" – I am married for good and therefore never bothered. But today I did, and this is the link I found: http://www.wisegeek.com/what-is-a-no-fault-divorce.htm
It was exactly the same time that Our Blessed Mother appeared at the other end in Europe to three shepherd children and said that Russia would spread her errors all over the world if……
Well, it seems that the errors have indeed spread. And I cannot think of anything more destructive, devastating and evil than yet another Communist concept of "no fault divorce". The implications are huge and chilling.
And the history of the last 100 years also shows the failure of the Catholic Church….She was supposed to do certain things according to the Blessed Mother and didn't do them.
I am not sure what is more chilling
Mercy!
Mum26
July 16, 2009 at 7:51 pm
Seems like people are missing the point, here. Stare Decisis is a perfectly useful principle. The entire system of English law, which is far older than the American adaptation, is based on it. It allows for a hierarchical approach to deciding legal questions…which, incidentally, is why we have a Supreme Court in the first place – to reduce chaos in the system.
As to why I threw out the term at all, it was to highlight that, Patrick, your definition of "settled" is too broad for the discussion. In an American court, the judges should not be interested in what mankind has been doing throughout history, but what American law states. That is all they're there to do. If we set them up as arbiters of some higher law, such as natural law; or put them in place to correct the legislature's failure to integrate natural law into positive law…well that would be truly terrifying.
July 16, 2009 at 8:23 pm
Actually, Roe v. Wade can be overturned via stare decisis. See my analysis here.
Also, it comes down to defining personhood. Do that, and the ruling falls. From Roe, "If the suggestion of personhood [of the preborn] is established, the appellant's case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the [Fourteenth Amendment]."
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As far as the worst, Griswold v. Connecticut. It legalized the Pill. I'm sure there has been more abortions from the pill than any other method.
July 16, 2009 at 8:57 pm
"I'm sure there has been more abortions…"
Sorry, that's "have been more".
July 16, 2009 at 11:55 pm
Patrick which 5000 year old definition are you refering to? The ancient Hebrew tradition which allowed for multiple wives? The era of Kings which allowed for multiple wives and concubines? The Greek tradition which allowed for marriages of pederasty? The Native American tradition which allowed for marriage to transvestites? The Tibetan tradition which allows for women to marry all siblings of her husband simultaneously?
What's unsettling is when people try to repaint history to suit their own agenda. We need to focus on what the definition SHOULD BE for this society NOW (i.e. one man one wife). Pretending it was always this way just makes you look stupid.
July 17, 2009 at 2:27 am
Griswold v. Connecticut was pretty damaging. It struck down anti-contraceptive laws and established a so-called right to privacy, which contributed to the necessity and foundation of such destructive rulings as Roe v. Wade, Eisenstadt v. Baird, and Lawrence v. Texas.