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Laws v. Men

Moses Breaking the Tablets of The Law by Gustave Dore
Moses Breaking the Tablets of The Law by Gustave Dore

Are we a nation of laws or a nation of men?

The very fact that the founders of our county even bothered to write the constitution shows that we were at least meant to be a nation of laws instead of a nation of men. The real question is, even though we were meant to be a nation of laws, have we been drifting towards becoming a nation of men?

A few of the causes of why we may have been straying from our intended state could be found on the bench where a few judicial activists have presided in The Supreme Court throughout its history. Decisions have been made and many of them have not been made without controversy. Regardless of whether previous rulings have been considered just or unjust, many people argue that once a decision has been made, we should let sleeping dogs lie by adhering to stare decisis.

Webster’s dictionary defines stare decisis as, a doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice.

Justice Thurgood Marshall also gave a definition of stare decisis and defined it as the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.

While it would be reasonable to agree that we can’t have the erratic changing of laws and that we should want our laws to develop in a principled and intelligible fashion, we can also reasonably argue that justices are not infallible and that if the courts have made mistakes, the principled thing to do is to re-examine the case and right the wrong. After all, is making the wrong right again not the essence of justice?

Instead of simply interpreting the law, in the past, many judges have made the mistake of making the law. When laws that were written down with an original intent are twisted by a justice to accomplish something else, a justice ceases (if they ever started) to interpret the law and begins to participate in judicial activism. When a justice actively legislates from the bench in this matter, The Rule of Law is violated and they have stepped out of their proper boundaries of the law. In our system of government, the legislature makes the laws, not the judicial branch.

Many people defend these judges by justifying their actions on the grounds of pragmatism, but if it is practical matter, The Constitution does allow for the changing of the law by the process of amendment.

Some people have also incorrectly confused stare decisis with the Rule of Law. They say, It has already been decided and so it is the law. However, just because it has been decided does not mean that it is the correct interpretation of the law. If the framers wanted to let the justices make decisions and set them in stone then they would have forbidden the courts from overruling precedent. The framers knew that human beings are not infallible and that the decisions they make are not always just decisions.

A decision is not just when the decision itself, is made without adherence to stare decisis in regards to the original intent of the written law.

The Rule of Law can never be justly discarded, however, stare decisis, in extreme circumstances, can be justly discarded. Of course, a justice should take great care if they are considering an attempt to overrule precedent; but they are not forbidden from doing it.

The only time a preceding ruling should be overturned is if it has been found to be wrongly decided. How do you know if a preceding ruling was wrongly decided? It all depends on the case and the applicable laws. Justices are imperfect human beings and, like the rest of us, they can and do make mistakes. If we are truly a nation of laws we shouldn’t let stare decisis stand in the way of justice.

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Joshua Ambrose

Joshua Ambrose is a restless disciple of Christ and sometimes whimsical mischief-maker. When not writing about theology, he writes about philosophy, history, economics, finance and basically anything that involves being a good neighbor in a way that honors his Lord.

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