The SCOTUS is not bound by any precedent when the underlying “constitutional provision” in not found in the Constitution. There is no right to an abortion in the Constitution, it is not explicit nor implicit. The solution to erroneous legal precedent is not more error. Roe is a cut on the Constitution’s legitimacy.
The SCOTUS gets decisions wrong. There is no better testament to that than Plessy V. Ferguson or Dred Scott. Without a mechanism for correction there is no way to fix the errors of the legal system. How exactly did Plessy get overruled? By reference to the Constitution, specifically the fourteenth amendment. Brown was the undertaker for Plessy not only because the circumstances had changed but also because it was more Constitutional. The temptation for judges to ensconce policy preferences into the Constitution becomes too great when starre decisis is the immutable, irrefutable means to codify laws for all time. Legally binding precedent that is independent of the electorate’s choices, independent of social, scientific and cultural realities. Judges are human beings and they too demand checks and balances on their power. Starre decisis coupled with unconstitutional and poorly reasoned legal decisions has the opposite effect, it empowers judges and leaves their ruling undeterred by anyone or any institution. Roe betrays the Constitution twice, first by inventing unenumerated rights and secondly by trammeling the principles that realize it.
Thanks for the great podcast and perspicacious legal opinions!!!
Sir, I strongly contest you're position but I am glad for it's clarity and consideration.
What specifically do you contest?
The SCOTUS is not bound by any precedent when the underlying “constitutional provision” in not found in the Constitution. There is no right to an abortion in the Constitution, it is not explicit nor implicit. The solution to erroneous legal precedent is not more error. Roe is a cut on the Constitution’s legitimacy.
The SCOTUS gets decisions wrong. There is no better testament to that than Plessy V. Ferguson or Dred Scott. Without a mechanism for correction there is no way to fix the errors of the legal system. How exactly did Plessy get overruled? By reference to the Constitution, specifically the fourteenth amendment. Brown was the undertaker for Plessy not only because the circumstances had changed but also because it was more Constitutional. The temptation for judges to ensconce policy preferences into the Constitution becomes too great when starre decisis is the immutable, irrefutable means to codify laws for all time. Legally binding precedent that is independent of the electorate’s choices, independent of social, scientific and cultural realities. Judges are human beings and they too demand checks and balances on their power. Starre decisis coupled with unconstitutional and poorly reasoned legal decisions has the opposite effect, it empowers judges and leaves their ruling undeterred by anyone or any institution. Roe betrays the Constitution twice, first by inventing unenumerated rights and secondly by trammeling the principles that realize it.
Thanks for the great podcast and perspicacious legal opinions!!!