Posted on July 12, 2018



Kagan Eat It Too

Stare decisis vs. living Constitution


Daniel Clark



In the Janus v. AFSCME Supreme Court decision, which held that public sector unions cannot compel dues from nonunion members, Justice Elena Kagan dissented from the overturning of the 1977 Abood v. Board of Education ruling on the basis of the judicial concept of stare decisis (“it is as it has been decided”).  If, however, Abood must stand, simply because “it has been decided,” then how does she square that argument with her statement during her confirmation hearings that, “the constitutional law that we live under does develop over time”?

This “living Constitution” paradigm cannot honestly coexist with stare decisis, for the simple reason that the Constitution must have some degree of permanence in order for a precedent to be rooted in it.  What Kagan would have her colleagues assume is that certain judicial constructs must stand forever, even as the constitutional sands beneath them shift and erode away.

She and the other liberal justices must not be allowed to have it this way.  If one accepts the premise that we have a “living Constitution” that spontaneously amends itself, then one must allow that a ruling based on such a document several decades ago might no longer be relevant.

To conservatives, stare decisis is merely a guideline, telling them that when the Supreme Court has dealt with an issue previously, the current justices should respect the opinions of their predecessors.  This, however, presumes judicial integrity on those previous justices’ behalf.  If they were not faithful to the Constitution in their decision, then future courts are not obliged to be faithful to their ruling.  In short, a justice’s loyalty should be to the law, and not to his elders in the Black Robe Lodge.

The very idea of a “living Constitution” that changes its meaning without going through the prescribed amendment process is openly disdainful of our Constitution.  In this manner, liberal justices usurp the power to amend the Constitution from the elected representatives of the people.  Thus, when someone claims to believe in a “living Constitution,” what he really means is that the American people should have no role in shaping the fundamental laws under which they must live.

It should be needless to say that any ruling that is based on this concept is absolutely unfaithful to the Constitution, and therefore does not deserve the presumption of stare decisis.  Take every “living Constitution” advocate’s favorite ruling, Roe v. Wade, which was based on absolutely nothing in the actual text of the Constitution.  If Roe is justified by the assumption that the Constitution had evolved to mean something it does not say, then why would it be assumed that it hasn’t continued to evolve over the past 45 years, in such a way that would render that decision moot?

The only consistency to this approach is that the Constitution must mean whatever liberals wish it to mean on a case-by-case basis.  Because liberals wanted to legalize abortion, then “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,” has somehow transformed itself into a generalized “right to privacy,” which, contrary to the meaning of that phrase, encompasses a right to dismember and kill an innocent third party.  So how do we know that this right has not since evolved away?  Because liberals want to maintain the legality of abortion.  Any more irrelevant questions?

So, the answer to how liberals like Kagan square the living Constitution paradigm with the principle of stare decisis is that they don’t, nor do they ever feel the need to do so.  To them, the only important thing is the outcome.  Had liberal justices not perverted the Fourth Amendment, they might just as soon have chosen the Third, and ruled that a baby in the womb is akin to a soldier being quartered in a house without the consent of its owner.  As anyone who’s read the majority opinion from Roe is aware, there is no argument too spurious for liberals to pretend to take seriously.

On the rare occasions when liberal opinion agrees with the Constitution, liberal judges will never entertain the proposition that our “living Constitution” has evolved to mean something it doesn’t say.  Nor do they believe in stare decisis if the precedent disagrees with them, as it did in the Bowers v. Hardwick sodomy ruling that the Court overturned in Lawrence v. Texas.  In short, liberals do not really have a coherent judicial philosophy, other than that they must get anything they want.



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