Not really, when you consider how many of the major liberal precedents of recent decades overturned long-standing precedents.

Part of the answer, of course, is that the left's commitment to stare decisis is selective. Many of the Supreme Court's iconic liberal decisions overruled prior case law. Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence's violation of that principle.

It would be easy to ridicule liberalism's inconsistent attachment to stare decisis as opportunistic. Nor is it hard to find a straightforward political motive. In a narrow partisan sense, it makes sense for liberals to emphasize attachment to precedent when confirming conservative nominees, since the best they can expect from such nominees is a holding action. One day, when a Democratic president is appointing liberal justices, we'll no doubt see more emphasis on the "living Constitution."

Still, something deeper may be involved as well. When liberals talk about a "living Constitution," what they really mean is a leftward-marching Constitution. Liberals--especially those of an age to be senators--have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: "conservative" precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct. To liberals, that probably seemed more like inevitability than inconsistency.

Over the last 25 years, however, the ground has shifted. History stopped moving inexorably to the left and began to reverse course. The conservative movement achieved electoral success under Ronald Reagan in the 1980s. It took a while longer for the conservative trend to reach the judiciary, but it's no coincidence that a number of conservative federal judges, including John Roberts and Sam Alito, got their start in Reagan's White House or Justice Department. Now, 20 later, they are eligible for elevation to the Supreme Court.

Now this may look like a call for activism on the part of judges. To the degree that it is, I condemn it. However, as I read HinderakerÂ’s commentary, it is more of an attack upon the theory that the Constitution is a living and evolving document. After all, such evolution provides for no stability whatsoever.

What we need is a steady course marked by a respect for the original principles which underlie the Constitution. As such, that may mean taking a liberal approach in one area, and a more conservative approach elsewhere. Indeed, a group of honest judges dedicated to the proposition that the Constitution means what it says as intended by its authors may require that some lofty liberal precedents be left undisturbed (such as Brown, which overruled the foul and false Plessy precedent) due to their unambiguous correctness, others (Roe and Lawrence chief among them) rightly deserve no less than a stake through the heart so that matters best left to legislative deliberation might be returned to their proper sphere.

What we ultimately need is not blind respect for precedent. We need respect for and fidelity to the Constitution itself.

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Posted by: Greg at 02:00 PM | Comments (1) | Add Comment
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