|VOL. 8, NO. 2||Feb. 8, 2006|
"Who Ultimately Rules-the Courts or the Constitution?"
By Virginia Armstrong, Ph.D., National Chairman
In these and other abortion cases, federal judges may insist on upholding court decisions (precedents) rather than the Constitution. But what does this really mean? If the Court adheres strongly to much of its existing case law, America will plunge faster and farther into a constitutional and moral abyss. If the majority of judges relies on precedents prior court decisions rather than the Constitution properly understood and applied, we will become more and more a government of men a government of lawlessness rather than a government of laws.
A court's over-reliance on "precedent" creates several DEADLY DANGERS for America. One type of danger involves consequences for the CULTURE. The second type of danger involves consequences for our CONSTITUTIONAL SYSTEM.
"Certainty" means that laws (or court decisions) can be objectively and clearly understood. "Consistency" means that no individual judicial decision should contain one portion that conflicts with another portion. Similarly, judicial decisions at a particular point in time, should not contradict one another. If either condition exists, "inconsistency" marks the legal system. The critical characteristic of "continuity" requires that a legal system must consist of continuous judicial decisions. That is, current decisions must be consistent with past decisions unless there is authoritative, compelling reason for change in the decisions (the most important reasons being that the U. S. Constitution demands the change).
In this "Court Watch Briefing" we examine "certainty." Judicial commitment to stare decisis has created chaos, not certainty, in many areas of American law. Nowhere is this phenomenon more obvious than in the Court's abortion decisions. Ironically, Roe v. Wade, the linchpin of abortion law, was itself without precedent. But the Court has clung to Roe with the tenacity of a pack of judicial bulldogs. In order to do so, the Supremes have had to resort to a variety of uncertain concepts and doctrines in post-Roe abortion decisions. For example, the Court in the last couple of decades has adopted the "undue burden" standard which was created by Justice O'Connor to determine whether an abortion regulation is constitutional whether or not it imposes an "undue burden" on a woman's right to an abortion. But what on earth is an "undue burden"? It is whatever the judges want it to be, and CERTAINTY in law is buried.
Surely one of the most egregious examples in history of an uncertain, judicially-created concept is the assertion by three Justices (not even a simple majority would agree on this one!) in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). To clarify for all the rest of us what is meant by the Constitution's word "liberty" in the Fourteenth Amendment, Justices Kennedy, Souter, and O'Connor penned the "mystery passage": "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This statement would have to be a top contender in any contest to determine the most uncertain statement ever made by the Supreme Court. Again, CERTAINTY is buried as the Supremes attempt to implement stare decisis in cases following Roe.
In later "Court Watch Briefings," we will examine further the CONSTITUTIONAL DANGERS created by federal courts' excessive devotion to the rule of precedent.