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‘Stare Decisis’

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VIEWPOINT

By RALPH HARDIN

Evening Times Editor T here’s a Latin phrase you might have seen in the news lately. It’s “stare decisis” and it basically means “to stand by things decided” in simple terms. It is used in legal realms to refer to “settled law” or a law that is deemed to have been decided and will not be revisited in the future.

For 50 years, one issue that most legal experts said was a matter of “stare decisis” was the Roe v. Wade U.S. Supreme Court decision that guaranteed a woman’s right to access to an abortion of her pregnancy under the 14th Amendment to the U.S. Constitution.

If you don’t happen to have your pocket copy of the Constitution with you, Section one of the 14th Amendment reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

And for the past half-century, it was this idea that led to most Constitutional law experts to believe that the abortion issue in the United States was, in fact, “settled law.” The idea was, of course, that once something is established as a Constitutional right, it would be very difficult to take away that right … right?

Well, maybe not. Let us not forget that the U.S. Constitution, as great as it is, has proven to not be a perfect document. After all, we have amended it 27 times over the course of the past 230 years. So, while our rights as Americans are guaranteed by the U.S. Constitution, the U.S. Constitution is not in and of itself guaranteed to be unchanging or subject to interpretation.

Let’s not forget, from 1919 to 1933, the 18th Amendment to the U.S. Constitution forbade the production, sale and consumption of alcohol in the United States. As I’m sure you know, thanks to all those funny beer commercials on TV, that’s no longer the case. We all collectively decided, or at least enough of us collectively decided, that we actually did not like that idea, so the 21st Amendment was ratified and the beer and whiskey flowed once again (not that it ever truly stopped at all … an important point in a minute here).

So the recent overturning of Roe v. Wade is a little bit different. No U.S. Constitutional amendments were passed. The U.S. Supreme Court simply changed its mind. And before you get up in arms about that, it’s important to remember that the court has definitely done this before. If you’re old enough, or if you paid attention in social studies class, you might remember the phrase “separate but equal” being mentioned. That was from the U.S. Supreme Court ruling in Plessy v. Ferguson in 1896 that decided that segregation the United States was legal, and so for the next six decades, that was “settled law”… until it wasn’t. In 1954, the U.S. Supreme Court decided (again, under the 14th Amendment) that segregation was not Constitutional and ended it with the Brown v. Board of Education of Topeka ruling.

So if these ideas are not “stare decisis” laws, are there any truly any settled laws in this country. Slavery was ended by the 13th Amendment. Who is to say a 28th Amendment couldn’t be adopted and bring it back? Is that extreme thinking? Sure, but it was extreme thinking in 1850 that we would actually get rid of slavery. The thing is, now that Roe v. Wade has been overturned, some have already started thinking about what else that we consider “stare decisis” could be revisited. It’s very much worth noting that things like access to contraception, gay marriage and even how our elections are conducted are all subject to judicial review. Did you know, we only vote directly for our U.S. Senators because of the 17th Amendment, passed in 1913? Before that, political parties in each state had delegates who basically handpicked their choice. There are calls to get rid of the Electoral College and go to a direct election for U.S. president. Nothing is decided … at least not permanently.

Yes, it’s all subject to interpretation. Did you know, the only reason it’s not illegal to be a homosexual is because of a U.S. Supreme Court decision in Obergfell v. Hodges that used – you guessed it – the 14th Amendment to guarantee equal protection under the law for gay people. Well, if the Supreme Court can reinterpret the 14th Amendment for abortion, whose to say it can’t for homosexuals, or women, or people that don’t conform to the Supreme Court majority’s worldview. And before you think, “Sounds good to me,” bear in mind that if a Constitutional amendment can be repealed, that means any amendment.

Like say the First Amendment … or the Second.

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