In response to
Unrestrain the Judiciary
Army Officer (Ret) in Kansas
Tuesday, June 19, 2012 at 1:09 PM
Army Officer (Ret) in Kansas
Tuesday, June 19, 2012 at 1:09 PM
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The problem is that liberals view the Constitution as a "living" document in the loosest sense of the word. In a very narrow sense they are correct: the Constitution was designed to be amended - but only by a very slow, difficult, and deliberate process to prevent the law from becoming a weather vane. But liberals want the law to be a weather vane - as long as they control the direction the wind is blowing.
Conservatives, on the other hand, are stupid about this. Since they understand the necessity of stability in the law, they slavishly adhere to the judicial principle of "Stare Decisis" ("Let the decision stand"). In other words, once a question is settled, the courts should not capriciously reverse it. Conservatives correctly understand that changing standing law is the purview of the legislature and not the courts. Don't get me wrong: "Stare Decisis" is necessary to maintain stability in the law - a necessity in an ordered society, but when only one side adheres to it it becomes a means of ensuring that the philosophy of that side will eventually dominate the entire legal system.
Why is that? Because it creates a big legal ratchet that only turns one way - to the left. When the left loses, they just try again later until they win, since they view the Constitution as "living" in the "weather vane" sense, but they know that conservatives will hang themselves with "Stare Decisis" once they win their case even once. Once the left wins once, the decision becomes "settled" and conservative judges feel duty-bound to uphold it. Then every time it is applied it further reinforces it as established case law. Those additional cases often nudge the line a little bit further until eventually "settled law" becomes so far removed from the original intent and so ingrained that it becomes impossible to go back to what the Constitution actually says (see "Commerce Clause" or "Right to Keep and Bear Arms").
Sheesh, I'm not even a lawyer and apparently I understand this better than every "conservative" judge in the country.