Shouldn’t judges advocate following the Constitution
There was a time when judges, especially Supreme Court judges, were held in high esteem. It was a time when these same judges gave sound advice to others on the law, and what was right and wrong. At no time did they advocate breaking the law. It was a time when two documents were held in high regard: the Holy Bible and the Constitution. A good judge knew that our laws were derived from the 10 Commandments. And when a judge promoted the belief that either of these documents were dispensable, they were courting early retirement. It is with this concept in mind that we jump ahead to today. Powerline has a great piece detailing how Justice Ginsburg gave a speech before the Constitutional Court of South Africa last month called “A decent Respect to the Opinions of [Human]kind”. In this piece, she said,
I should disclose the view I have long held: If U.S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others including Canada, South Africa, and most recently the U. K. - now engaged in measuring ordinary laws and executive actions against charters securing basic rights.
Where do they come up with this? How can it be that the Constitution is the supreme law of the land and yet is subservient to the laws and constitutions of other nations? Intelligent reasoning will dictate that it can not. Only the U.S. Constitution can be supreme. Learning laws from other nations is the job of the Legislature, not the Supreme Court. We can see this same attitude in the Lawrence v. Texas (2003) case where the majority of justices, including Ginsberg, wrote the view that sometimes we need to look to other nations and other court cases for inspiration.
Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. (Italics added)
And then to top it off, the justices stated that stare decisis was not relevant. This is interesting considering all the grief Justices Alito and Roberts got from the Democrats in the Judicial Committee.
Stare decisis is not an inexorable command.
Silly me, I thought the law of the land was the constitution. And one thing the justices supposedly did not want to overturn was a case involving stare decisis. This is getting scarey. If there was ever a time for the good people of this country who love our constitution to push for strict-constructionist judges, it is now.
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