Stare Decisis Revisited

These are not normal times. We seem to be living through times the Pauline prediction that “what can be shaken will be shaken” (see Hebrews 12:27). I use a Bible text advisedly, because so many people of faith seem to have committed themselves to shaking the system of secular laws to bring about moral renewal.

Liberty has not spent a lot of space on Roe v. Wade in the years since that 1973 Supreme Court case. In those 46 years the Christian opposition to this abortion precedent has swelled from moral outrage at such a blatant denial of the value of life, through to violent acts, including murder, against those who perform abortions, and finally on to concerted political action to gain power and roll back this and other objectionable precedents. I have commented before in Liberty at the rather ironic doctrinal dynamic that once saw Roman Catholic leadership out front in opposition for reasons that had everything to do with original sin and the immortal soul, but later joined and arguably overtaken by American Protestant leadership, which seemed not to care as much as Luther et al about such differences. But for the point of my comments here, it makes little difference: a unified Christian action coalition is on the move to roll back Roe and as many as 120 other court actions it finds offensive.

So-called heartbeat bills in a dozen states now criminalize all but the most early-term abortions. Alabama just went ahead and passed an openly anti-abortion bill that could apply penalties of up to 95 years in prison to doctors who perform abortions. It passed the state senate by a vote of 25 to 6 against. Of course, this bill is in violation of Supreme Court precedent—by design. I think it obvious that this is in expectation that the newly conservative Trump Court will promptly overturn Roe when this challenge is taken up. Oh, I know that some recent applicants murmured about established law during confirmation, but many think that the necessary white lie to do good later on!

A while back I read some comments on all of this by Jeffrey Toobin writing in The New Yorker (May 27, 2019, pages 19, 20).Justice Thomas wrote for the majority in Franchise Tax Board of California v. Hyatt, on whether the 1979 precedent of the Court should be overturned. “In his view,” writes Toobin, “it is fine for the Court to do away with stare decisis, the rule of precedent, if the current majority believes that the precedent represents ‘an incorrect resolution of an important constitutional question.’ ”

Toobin writes, “This is not how stare decisis is meant to work.” What he didn’t write, but I think apropos, is that this looks like legislating from the bench, something we have been warned about for years by the very same people who now attempt it.

Back to Roe again: I think it obvious that in practice the phenomenon of gratuitous abortions, often used as birth control, have cheapened the value of life and paved the way for some people seeming unnecessary in a utilitarian society. Of course, before Roe, women were treated badly in this regard and often bore both the blame and the consequence for unwanted pregnancies. So it cannot be good for big brother government with uncle faith to lay a heavy hand on personal behavior. That is the conundrum here. Yes, abortion, as it has come to exist, is part of a moral decline in society. And yes, people of faith risk being part of the stoning crowd who brought a woman before Jesus. Somehow faith-supported legal initiatives should be more in line with Jesus’ advice to her: “Go, and sin no more” (John 8:11).

Now, back to the Latin. I always find it very telling that so much of the law and so much of Roman Catholicism is steeped in Latin. Evidence that we are not so far removed from the long-lived, or slow-to-die, Roman Empire. And I write this in gratitude that I was only a generation removed from obligatory Latin lessons in school.

Stare decisis is a term central to any discussion of the law: it means “to stand by what has been decided.” Or, as a more elongated translation of the larger Latin statement goes: “Stand by what has been decided and do not unsettle the established.” A good legal principle in any society aiming at stability, as the Romans did.

I remember once a good few years go listening with much interest to the inimitable Justice Antonin Scalia expound on his principle of original Intent in interpreting the U.S. Constitution.He was hardly a legal neophyte, and his general principle had much to recommend it, even if it tended to play amateur psychologist with dead icons and ran the risk of summoning up the lesser of the Founders’ intentions. At one point in the lecture he railed against English common law—and indeed, on any other legal system—as being irrelevant. But I think I saw a twinkle in his eye as he said it, and I took it as more of a dare than a fact. Because U.S. law is deeply indebted to English common law. How could it be otherwise? The 13 original states were of course English colonies. One little window into the legal awareness is Jefferson’s discussion of the origin of morality in common law.

Further, in spite of the revolutionary language of the American Revolution, it was not the radical ejection of the old that the French Revolution introduced. In the French Revolution the old political order was guillotined, and religious structures demolished. The American Revolution took to the next level the aspirations to republicanism that had already stirred England in its civil war andnevertheless ended up with its own versions of Whigs and Tories, and upper and lower houses, and a presidency set up suspiciously like a constitutional monarch of the time (thank God Washington refused the crown!). I know the current president sees Article II as conferring unlimited power, but the reality is that the king of England had little more than veto power, and the presidency was intended to be the instrument of the people.

During the alarms that followed the September 11 attacks, various attempts were made to change settled law. I remember well the comments of a George Washington Law School professor that presidential actions on arbitrary imprisonment for anyone designated an enemy combatant put us back before Runnymede and the Magna Carta of 1215. English legal precedent, yes: part of the founding principle in the U.S. of habeas corpus and a full legal process as protection against tyranny.

Once we turn against the settled laws and liberties that define a free people, anything is possible. A morality unmoored from law is, apart from an inbuilt contradiction, mortal peril for all freedoms. How easily some forget that the Soviet Union, and the grand dictatorship of the proletariat it advanced, was unsettlingly moralistic. How few remember that it was a yearning for moral renewal that raised the Nazi Brownshirts to power in Germany! And who has the temerity to raise the topic of the Inquisition, not just in Spain but throughout the Old and New Worlds—an inquisition that overturned the logic of freedom and rights in its search for moral security.

Article Author: Lincoln E. Steed

Lincoln E. Steed is the editor of Liberty magazine, a 200,000 circulation religious liberty journal which is distributed to political leaders, judiciary, lawyers and other thought leaders in North America. He is additionally the host of the weekly 3ABN television show "The Liberty Insider," and the radio program "Lifequest Liberty."