Good point, Michael. Stare decisis can perpetuate bad law just as easily as it perpetuates good law. When a Supreme Court with a political bias renders by a 5 to 4 margin a very controversial decision that is repugnant to the constitution and to the people who are supposed to be the sovereigns, stare decisis allows that decision to be law of the land in perpetuity unless and until some other Supreme Court overturns the decision (which is highly unlikely).
Having a fundamental law in the form of a constitution and then using stare decisis is sort of like having an official yardstick or meter stick stashed away in a vault and letting a succession of guys in charge of measurements whittle their own version out of a mop handle every so often.
IF politically and personally unbiased and independent judges were to be abundant and IF presidents could be relied upon to choose such judges to appoint to the Supreme Court and IF the Senate could be counted on to advise and consent to their appointment, then there might be some hope of a really fair and independent third branch of government. But you might as well believe in the tooth fairy.
James Madison wrote, "If all men were angels there would be no need laws much less for government." Unfortunately the dearth of angels among men means that the men in government suffer from the same shortage. Since its very inception the government of the United States has been afflicted by scoundrels.
The Supreme Court was conceived as a top level court to render final decisions in ordinary lawsuits and criminal trial cases that could not be resolved at state levels and to have original jurisdiction over cases involving states, ambassadors, etc. The court then arrogated to itself the role of deciding whether or not laws were constitutional or not (Marbury v Madison). That has now become the main activity of the court, and it has created its own "law" which allows it to escape much of its responsibility by permitting it to decline to hear cases under its "certiorari" rule.
Thomas Jefferson, particularly, foresaw the probability that the government would become oppressive and out of control and advised vigilance against such a trend. Other founding fathers echoed this. But there was also a balance. Not only is eternal vigilance the price of liberty, but the people themselves need to maintain a basic level of virtue.
"Human rights can only be assured among a virtuous people. The general
government . . . can never be in danger of degenerating into a monarchy,
an oligarchy, an aristocracy, or any despotic or oppressive form so long
as there is any virtue in the body of the people."The United States bears some similarity to a Ford Pinto built on a Monday and maintained by a Chrysler mechanic who bought beer with the parts budget. It is now so far gone that repair is pretty much out of the question. But where are the designers, engineers and workers who could build a new and better one?
-- George Washington
"Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters."
-- Benjamin Franklin
Thus, in my mind, going to corrupt courts or dealing with corrupt congresscritters and their corrupt, overcomplicated and dilapidated laws is reduced to working within the messed up system by using any kind of duct tape or bailing wire that will work. In that context, using stare decisis is a fine idea.
On Tue, Oct 26, 2010 at 1:48 PM, Michael <mn_chicago@...>
--- In firstname.lastname@example.org
, "Legalbear" <bear@...> wrote:
> Considerations of uniformity, certainty, and stability,
> which are the objectives of the stare decisis doctrine,
Right. It also eliminates resorting to the Constitution,
one of the primary purposes of employing it in courts...