Happy 150th Birthday to the Left, from President Trump. Brent Kavanaugh. Legal pundits rant 24/7 about stare decisis. One needn’t be an attorney to understand the meaning of the stare decisis doctrine, a Latin term meaning, “to abide by or adhere to decisions.” One may have to understand what it means today. The Left is apoplectic, warning of an apocalyptical threat if Kavanaugh’s confirmed. That’s code word to conservatives, “Don’t dare disturb the sacrosanct Roe v. Wade decision.” Another stark reminder of how the legal profession has strayed from its early common law moorings, relegating the principles of common law to the dust heap of history.
Justice Holmes laid the ground work for the arbitrary power of activist judges, as early as 1891, commenting, “judges do and must legislate.” Russel Kirk, in The Roots of American Order, observed that “stare decisis is based upon the principle that power is restrained because the absolutes of the ‘higher law’ do not change, although they may bring varying results as applied to different circumstances or cases.” The law of courts, under common law, was considered a law of precedents. Past decisions provided a ground for deciding present cases. Precedents were based on Judeo-Christian principles, which many liberals dismiss.
Common law was a law of the people established in English courts, influenced by renowned 18th century English jurist William Blackstone, whose ideas on law embodied the tenets of Judeo-Christian theism in his Commentaries on the Laws of England, were readily accepted in the colonies. For some in colonial America, there was initial aversion to the common law — primarily because it was considered by early patriots as advancing British influence. However, it quickly became a mainstay in the laws of colonial and postcolonial America. So important was common law in determining the theory of jurists and government leaders, it was studied for centuries by both jurist and commoner.
American law is rooted in the law of England. Our legal system is known as Anglo-American. When the colonists planted their feet on our sod, they came as English citizens entitled to all the rights of Englishmen. They brought with them the legal structure of that country, including the protections of the Magna Carta. For context, early American jurists had great reverence for the common law. Supreme Court Justice Joseph Story, in his inaugural address as professor of law at Harvard University, remarked, “There never has been a period of history, in which the Common Law did not recognize Christianity as lying at its foundation.”
Under common law, abortion, as an intentional act, was extremely rare. The “Roe Court” strained to find any historical facts supporting abortion. They also discussed the renowned English jurist, Lord Edward Coke, and his view that abortion, though rare, was a crime. In the end, the Court dismissed his view. It ignored any prevailing scientific evidence that a human being exists in the womb, is irrefutable today. No wonder the merchants-of-death are unnerved by a jurist who adheres to strict Constitutional interpretation. Attorney, J.W. Erlich, in The Holy Bible and the Law, 1962, cites an 1836 New Hampshire case, where the judge decided a case in terms of the Bible, because common law made such a procedure not only legitimate, but basic.
The common law rights and language infiltrated the Constitution, like the Seventh Amendment, and various state laws that are too numerous to enumerate. Liberals pilloried the June 27th High Court decision to turn precedent on its head — the forty-year-old Janus v. AFSCME case, halting public unions’ right to continue picking the pocket of nonmembers, forced to pay for political speech that violated their own. In the 1857 Dred Scott decision, as in Roe, that was the federal state’s expression of what is right, and nothing to do with the Constitution. It remains the law of the land. Only the 14th Amendment citizenship clause nullified it. What about the 10th Amendment? Shouldn’t states ignore Roe v. Wade, and Obergefell v. Hodges, on same sex marriage, taking it to their legislature, restricting its reach? That could ultimately unravel the disastrous, unconstitutional weaving, made from secularist cloth, unmoored from either common law or the Constitution.
Blackstone understood the presuppositional basis for common law, “The doctrines thus delivered we call revealed or divine law, and they are to be found only in the holy scriptures.” Every “unalienable right” or law comes from God. Blackstone’s influence is unalterably clear in the Declaration of Independence. The colonists understood that it is “the Laws of Nature and Nature’s God,” that entitled them to an equal station among nations. Our Founders understood that Fallen Man cannot be his own lawgiver and judge. Can the law be simply what the majoritarianism proclaims or black robes legislate?
The skewing of the Fourteenth Amendment played a pivotal role in the Supreme Court’s removal of a Judeo-Christian base, once the linchpin of American culture. Now the Fourteenth Amendment means whatever a judge says it is. Law is arbitrary. Former Justice William Douglas, observed, “Due process, to use the vernacular, is the wildcard that can be used as the judges choose.” States’ rights have been eviscerated by the elastic Fourteenth, enabling the federal judiciary to precipitously insert itself into state matters, threatening the guarantees of the Bill of Rights. Justice Douglas “discovered” a fundamental “right to privacy” in Griswold v. Connecticut not found in the Constitution.
The Federalist Society warned the battle over the Fourteenth has no surcease. There’s a host of issues from marriage, abortion and voting rights to affirmative action. At stake? Strict textualism versus an “evolving” Constitution, and the scope of the Bill of Rights’ protection for free speech, gun rights, religious liberty, overreaching government search and more. Beyond Kavanaugh, President Trump may get another shot at the Court this term, if narcoleptic Ginsberg awakens to resign. Thank God Hillary’s a spectator. What do you think?