Legal Precedent; Apply when Convenient
Updated: Jan 26
This morning, as usual, I began my day with the grave error of reading the news. On this particular day, I had the misfortune of reading this drivel, courtesy of endless drivel-provider, Slate Magazine.
To summarize that article in a paragraph, it is essentially some leftist howling at the dangers of Brett Kavanaugh increasingly turning to the United States Constitution in his decisions, as opposed to case law - legal precedent as decided by lawsuits from the past. Of course, in the process, in typical fashion, she manages to not-so-subtly accuse the entire 10th Circuit court of being sexist and dissenting on opinions written by female justices….but that’s only because “sexist/bigot/racist/homophobe” is the mindless battle-cry of the left, and not relevant to this article.
I’d like to discuss the concept of ‘legal precedent’ for a moment. Essentially, the idea states that if a similar case has already been settled, justices should simply cite that case and say “well, it’s been decided already, nothing for us to do here”. This is not only irrational but is insane and wildly dangerous to every single one of our American freedoms. There’s currently much angry chatter on the left about how Kavanaugh will want to disestablish the precedent of Roe v. Wade, and how a conservative SCOTUS would ignore precedents. This, sadly, probably will not be the case, but it should be. Consider the following:
Dred Scott v. Sandford (1857): The “totally anti-slavery, you guys” Union not only reaffirmed the legality of slavery in the eyes of the federal government, but ruled that slaves who escaped to free states had to be returned to their masters. Should we still abide by this, since it’s “precedent”, Miss Slate ‘Journalist’?
Korematsu v. United States (1944): The 9-justice Supreme Court, most appointed by that leftist darling FDR, ruled 6-3 that the internment of American citizens of Japanese descent was legal because some people who happened to be from the country their families left even decades earlier bombed Pearl Harbor. For the record, the federal government didn’t even back off this decision officially until 2011, and didn’t overturn it until Trump v. Hawaii, in 2018, because, well, it was a chance for them to “stick it” to Donald Trump, so now everyone cares. And this brings me to my next point:
Legal precedent/case law as it relates to constitutional law is only considered a good thing when it fits the modern leftist agenda.
This particular Slate writer clearly believes legal precedent trumps the Constitution. So, should Dred Scott trump the 14th Amendment?
There’s over a century of legal precedent from SCOTUS smashing every single atom of the leftist agenda into the purest of nothingness, but few, if any, of those are household names like Roe v. Wade (which even a cursory Google search will reveal dozens of articles screaming that it’s canon because of “precedent”, and Planned Parenthood outright declaring it a constitutional right). If we’re going to play The Precedent Game, allow me to have a turn at exposing some precedent the left has very conveniently forgotten:
United States v. Cruikshank (1876): This case determined that the 2nd Amendment (and the 1st) "was not intended to limit the powers of the State governments in respect to their own citizens", and "has no other effect than to restrict the powers of the national government".
Huh. Weird. I mean, if I were crazy, I might think that was Lincolnian justices (all but one were placed by Lincoln or Grant, who flatly did not believe in freedom), in postbellum America, right after Lincoln’s War killed a mind-boggling 750,000 people (approximately the same number as every official war in US history to date COMBINED) ruling that the federal government has absolutely zero right to ever make even one single law restricting firearms. Could it be?
Presser v. Illinois (1886): Yep. It could be. While this case is happily used by the left for the fact that it ruled states can establish gun laws (in direct violation of the incorporation doctrine, per this same ruling), the left also conveniently forgets the part where that same ruling reads “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States”.
I could go on. Even the first Chief Justice, John Marshall, who opened the door for SCOTUS to become the omnipotent entity it is today flatly stated in Marbury v. Madison that “A law repugnant to the Constitution is void”.
The left often plays the “precedent” card, but only when it suits their needs. The contention that precedent somehow trumps the actual Constitution is appalling, baffling, irrational, and inexplicable, but oft employed. Justices are human, and humans err. Humans have biases. Humans have agendas. The Constitution is a constant. All of law should be determined by what the actual laws state - not by the highly fallible interpretations thereof that constantly differ. By definition, most cases tried by the Supreme Court have already been ruled in both directions - clearly, judges often disagree on things, which renders a decision to base a ruling on precedent absolutely reckless, lazy, and foolish. It’s time we did away with the concept of legal precedent as it relates to constitutional law, and, y’know, relied on the “constitution” part of “constitutional”. Prioritizing historical court rulings over modern societal sentiment is the antithesis of ‘progress’. If ‘progressive socialists’ are not actually ‘progressive’, they are just the same old socialists that killed over a hundred million innocent people in the past century. Are those the ones we want running the government?
The views expressed in this article do not necessarily reflect the views held by The Liberty Block or any of its contributors or members.