Constitution declared Unconstitutional

In this space, in recent days, I have been arguing that the states are sovereign. The two most recent Supreme Court decisions have held, in effect, that they are not, and that our government is an unlimited autocracy, with no real check on its power.

From Chief Justice Roberts’ majority opinion, http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

“Our precedent demonstrates that Congress had the power to impose the [individual mandate] exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

This means, in effect, that under the taxing power, the Congress may pass any law it sees fit for any purpose it sees fit, or for no purpose at all, touching any area of the law.

Even given the wide deference the High Court rightly gives to Congress, this decision is an abomination. It would live in history alongside the Dred Scott decision as the exemplar of a gross miscarriage of justice, if future histories would be allowed by the State to be written. As it is, I assume the First Amendment shall be repealed under the taxing power for the rest of you as it already has been, in effect, for the Catholics.

For those of you increasingly frequently found citizens of the Republic who have never read the Constitution, allow me to explain that Congress has the power to lay and collect taxes, either a capitation also called head tax (which must be in proportion to a census), or an excise tax, or (thanks to the Sixteenth Amendment) a tax on incomes. The Obamacare mandate is not a capitation, not an excise, and not a tax on income. Logically, then, Congress has no power to impose it.

There is also the matter of the standing of the suit before the court. There is a law called the Anti-Injunction Act which bars lawsuits against taxes until after they’re levied. Logically, the lawsuit which declares the ACA to be a tax cannot be brought under that act, and thus the holding which declares it a tax is null and void: the court had no authority to hear the case until the tax is levied. Logically, the High Court if finding the ACA a tax should have remanded it to the lower court for a finding of standing, i.e., should have waited under the Anti-Injunction Act until the tax was levied.

If you wonder how we came to the point where the fecklessness of one unelected official decided that Constitutional government was done for, and that man decided what you yourself shall buy and how much you yourself shall pay, all I can say is that it is a side effect of awarding Congress and the administration greater and ever more intrusive powers.

So you are no longer citizens, you are subjects. Put away your arms, and kiss your children farewell. Their future, and in effect their lives and fortunes and sacred honor, belongs to Caesar. Submit to the authorities placed over you, as they know better than you how you should run your life.

ADDENDUM:

As an final irony, even while it dismantles the core concept of federalism, the High Court affirms the principle, which I have wasted precious time in recent days attempting to explain. They say it better than could I:

The Federal Government has expanded dramatically overthe past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions. See, e.g., United States v. Comstock, 560 U. S. ___ (2010).
The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do performmany of the vital functions of modern government—punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598, 618–619 (2000).

50 Comments

  1. Comment by lampwright:

    I wonder if it is not as bad as it first looks. The Supreme Court was asked a specific question: Can congress make people pay for something. It answered: Yes, it has the power to tax.

    It was not asked: “Is what they are being made to pay for constitutional?” That is actually a different question and could come up in a different case.

    • Comment by Mary:

      It’s not a tax. It’s a penalty. It’s explicitly described as such.

      Also, as a tax, it’s unconstitutional, since it doesn’t have an amendment like the income tax to justify it.

    • Comment by The Deuce:

      Disagree. They were not being asked whether it’s Constitutional to tax in general. They were being asked to decide, specifically, if it’s Constitutional to penalize people for not buying health insurance specifically. The Taxing And Spending Clause was not being ruled on. Obamacare was.

      And what they decided wasn’t that the government may tax (which was never questioned), but that the government’s permission to tax allows them to administer fines to people for not buying something the government wants them to buy specifically.

  2. Comment by TheConductor:

    It’s appropriate that this ruling has to do with a health care law, because I may be physically ill after hearing the appalling news this morning.

  3. Comment by JoeCool:

    So, you can be taxed on something you DON’T buy? Interesting.

    Reminds me of a Marx Brothers sketch: http://www.youtube.com/watch?v=vhaDA7TneL4.

  4. Comment by JoAnna:

    I predict we’ll soon see the logical extension of the HHS mandate: you may only have X number of children. If you have more, you will be taxed.

  5. Comment by Dan G.:

    Honestly, I think this was a good decision from a legal point of view, though I vehemently disagree that the law should have passed Congress. It is Constitutional in the most stringent sense; the law says “We want to tax you if you don’t do what we want you to.” The Constitution doesn’t say you can’t do that. Instead, we are supposed to elect officials that are not stupid enough to pass such a law in the first place.

    Since we failed to do that, SCOTUS should rightly let us suffer for our foolishness. I don’t want them to play activist for either side. We’re getting what we voted for, and we’re getting it good and hard. It’s in Congress’ hands now to repeal this abomination, as well it should be.

    • Comment by John C Wright:

      Reading the opinion, while the justices correctly wish to give the Congress wide deference in such matters, the central argument is that a law which does not impose a tax but imposes a penalty for noncompliance (a penalty gathered through the IRS) can be considered a tax by the Court for the purpose of declaring it constitutional, even if the Congress has no constitutional power to forbid or control the activity on which it is imposing a penalty for noncompliance. Got that?

      It is poor legal reasoning.

      • Comment by Dan G.:

        I agree that it doesn’t make much common sense, but there’s a lot of case law that seems to support the idea. I think a key part of the distinction can be found on pp.33-36 of the decision, which explains why they believe it to fall under the taxation powers.

        As for no Constitutional control over the activity, the do over the activity (at least, according to modern interpretations of the Commerce Clause, as far as I understand it) but not the inactivity, which is why it must be a (relatively small) tax as opposed to something harsher.

        Again, I think the whole Act is absurd and horribly written. And in my ideal universe, existing decisions and case law would never have let the Commerce Clause get as widely abused as it has. But I think this fundamentally is an issue of the Legislative Branch screwing up, not the Judicial. I’ve got no formal legal training to speak of, so I’m just going off of what I have read, but I’m much more comfortable leaving Pelosi and Friends as the villains of this story than I am about moving that role to Chief Justice Roberts.

        I might add that I think it’s unfortunate that I chose to make my first comment here one of disagreement, as I have lurked for a long while in full agreement with you on a great many things. Oh well.

        • Comment by John C Wright:

          I don’t mind disagreement, as long as it is not disagreeable. I concur about the ideal world, one where the Constitution either would have been properly amended to allow for the New Deal regulation of the economy, or not amended at all.

          I disagree that the taxing power can authorize a tax on an inactivity, that is, failing to buy a commercial product. And the court specifically struck down the argument that the Commerce Clause allows Congress to tell each and every citizen to do or to forebear from doing a specific private economic action.

          • Comment by Dan G.:

            Where do you draw that from? The idea that they cannot tax inactivity, I mean. I am in agreement with you that that’s how it SHOULD be, but don’t know of anything to legally back up the argument that it’s how things are. That is, to me, the crux of the issue – I don’t know of any legal requirement that says Congress has to have a good reason to create a tax, which means that if they can sneak it by, they can tax pretty much anything.

            • Comment by John C Wright:

              I am drawing it from my admittedly dim and limited memory of the taxing power cases I read in law school. The main limit on the taxing power is that it has to be “arguably neutral” (I don’t recall the real name of the legal doctrine, sorry) which prevents the government from, say, taxing blacks twice what whites are taxed, or taxing Catholics twice what Protestants are taxed, and so on.

            • Comment by Stephen J.:

              I’ve read comments elsewhere that say a tax on individuals for an inactivity would constitute a “capitation tax” (since it cannot be an income tax or a sales tax or any other kind of tax on any actual earned or spent monies), which is apparently proscribed in some context or other. Is that argument worth pursuing?

          • Comment by Mary:

            In an ideal world, there would be no law and no Constitution because no one would even want to do wrong.

            • Comment by John C Wright:

              The difference, ma’am, between us, is that your ideal world is real, more real than the world and more eternal, just not in this present world. Mine is not real, I am sorry to say: There is no uncorrupted version of human laws anywhere because there are no uncorrupted humans.

  6. Comment by TheConductor:

    Off-topic, but some good personl news to brighten this day when Catholicism has been declared illegal: My doctor’s office called me today to report that my biopsy results came back negative; all is normal.

  7. Comment by Gian:

    Underlying and surrounding the Constitution is the Natural Law. It is by Natural Law, we can define tyranny. State sovereignty, which is a usage peculiar to America and historically contingent has nothing to do with it. Contrary to Romney, the mandate would be tyrannical even if imposed by state.

  8. Comment by robertjwizard:

    If you haven’t read Atlas Shrugged yet, folks, don’t bother. You’ll have a first class ticket for the real thing – hold your breath at the tunnel…

    • Comment by John C Wright:

      Prophetic words, alas, but true.

      My doctor has already said he is quitting the profession if Obamatax (as it shall henceforth be know) is not defunded and repealed. Atlas is already shrugging, as we can see in the sluggishness of the economy.

      • Comment by robertjwizard:

        And I certainly cannot blame him, in fact I applaud it. If all doctors had the fortitude of yours, to shrug, ObamaTax would die an instant death.

        Unfortunately, that doesn’t happen in the real world. Atlas Shrugged was a fantasy projection, a conceit to make a point.

        What is really frustrating is how the argument was won by the right side long ago, proved in theory, proved in practice (by both sides), and still we have to go through this crap. The argument for freedom, the argument against socialism, Keynesian economics etc, ad nauseum – was finished long ago. In justice we shouldn’t have heard another peep after von Mises.

        • Comment by John C Wright:

          It is the frustration with how evil and stupidity continue to win, when we all know in our hearts that they could not and should not win, because they are self destructive and inefficient, that drives men to religion. Whatever else is true or false about the faith, at least we have the most obvious common-sense observation that men are badly crooked and something in the world has gone horribly wrong (we call it Original Sin) and we have the hope, despite daily pain and suffering, that one day it will all be set right.

          But ATLAS SHRUGGED may not turn out to be so fantastical after all. Unlike other constituencies, doctors are organized, wealthy, respected, and intelligent – no dummy graduates from med school – and they cannot be so simply demonized like big Pharma. Too many people like me know and like their doctors, and know the sacrifices doctors make to be doctors. Only a true ideologue would bother accusing them of being plutocrats, and, thankfully, while they are the loudest minority, true ideologues are a small minority.

          Frankly, I think the doctors in America wield too much political power to be streamrollered into this madness. I could be wrong. I was wrong about how the Supreme Court would vote.

        • Comment by Stephen J.:

          “What is really frustrating is how the argument was won by the right side long ago, proved in theory, proved in practice (by both sides), and still we have to go through this crap.”

          That is because there will never be any shortage of indignant, good-hearted people so eager to eliminate forever a particular form of human suffering from the Earth that they don’t think to check the math on the solutions being peddled, or to inquire into the motives and benefits of the peddlers. The desire to do good at someone else’s expense will always be with us, and it will always be one of our greatest weaknesses.

          • Comment by robertjwizard:

            I agree up to a point. But I do not believe they are good-hearted. A regular, ignorant citizen with no knowledge of economics, they may be wildly wrong, good-hearted, and badly misled. Don’t excuse everyone under this banner. Some pursue this end for other, greater (to them) ends, knowing full well the ultimate consequences. Such “higher” ends: power lust, egalitarianism, votes, nihilism, self-aggrandizement, idealogical demagoguery.

            Just on the basis of what this will do to the debt situation that is everyday news, not some esoteric tidbit, I am unwilling to let off 90% of the people that support this calamity.

            • Comment by Stephen J.:

              “A regular, ignorant citizen with no knowledge of economics… may be wildly wrong, good-hearted, and badly misled. Don’t excuse everyone under this banner.”

              Everyone, no. The majority, I really believe, yes.

              Note that I do not include in that majority any of the politicians who actually assembled this or got it passed. Nor do I include anyone in the media who has deliberately suppressed critical examination of the Act or misrepresented the veracity of what criticisms are made. (Even the debt-boosting that is supposedly “everyday news” is believed much less than it should be because of concerted media effort in that direction.)

              I also don’t include those who may have had doubts in their own mind, but deliberately ignored them out of stubborn partisan loyalty, or out of vindictive glee at the possibility of humiliating opponents. (Full disclosure: I had to admit to myself earlier today that one of my own reasons for disappointment in the decision was loss of an opportunity to gleefully mutter “HA ha!”) But since knowing who actually falls into that group requires mind-reading I don’t possess, I cannot actually direct that accusation against any real person.

              The one thing I will fault the majority of supporters for is simply being willing to believe that somehow you can expand service while decreasing costs without losing efficiency merely because the costs have been “socialized”. But letting hope overwhelm logic is a failing I share myself, so there are only so many stones I can throw.

            • Comment by DGDDavidson:

              The people with whom I regularly associate know not even the barest basics of economics and next to nothing about the current health care law. They simply think that socializing healthcare is what modern, civilized countries do. It does not occur to them that socialized healthcare must be rationed healthcare, and I doubt they would believe it if it were pointed out to them. To get them to understand, you’d have to start with the barest basics.

              As for the HHS mandate, the people I usually associate with have no concern for the rights of Catholics or the Catholic Church. They just want their free lunch and their free condoms and would prefer it if medieval institutions and moral authorities went away so the could continue to get drunk and party hard without anyone scowling at them.

              Based on what I hear from the common man I regularly encounter, I’m inclined to think that the popularity of socialism stems directly from personal immorality: they want a nanny state providing bread and circuses because they want the government to, as far as possible, remove from them the consequences of their irresponsible behavior. The only goal in life I usually hear from people my age is the pursuit of pleasure–pleasure of the lowest sort. They know no good in life aside from drunkenness, fornication, and drug use, so they want social programs that enable them to indulge themselves. At the same time, of course, they regard themselves as the moral superiors of their ancestors, and they react to virtue with righteous indignation.

              • Comment by robertjwizard:

                I am guessing from your comment of people your age that you are 30 or younger, and you are certainly seeing the same thing I am. If we look at the promotion, through commercials, movies, shows, music, celebrity fixation, it should be small wonder. It is like a mantra: life is going to the club, trying to be perceived as cool, having meaningless sex, and it’s perfectly fine and without consequence. What would you do in a meaningless void as a meat-puppet? If that is what you have been taught all your youth?

                Also agreed on the appeal of socialism as long as we add the constant bombardment of its idea(ls) by those that do or should know better (the college professors, parents, et all). There is a certain craven cowardice in socialism, a desire to get away with something, to escape the effort of life.

                I usually only feel pity for the 30 and unders. They have really no conception of anything other than the party, Heffner, Kardashian – glitz and cheap frills entertainment and zero worship that globs over all of us like some pestilent paste.

                Those that are older though. They I have disdain for. Not only have they had more time to experience and learn, they had more exposure to better social elements and ideas that are getting progressively more and more buried.

                There is only one thing they get indignant about – moral judgement, at least any judgement that may touch in any way their non-existent self-esteem.

                • Comment by DGDDavidson:

                  You’re more-or-less correct in your guess. I’m thirty-one, and I think you summarize the problems with my generation quite well.

                  • Comment by robertjwizard:

                    Alright, I confess, I visit your site from time to time and your picture also suggests around 30 years of age. Mind you I am only ten years older than you, but I have distinguished a difference between these ten years. Culturally there is a cut off time in the early 90’s where the counter-culture reasserted itself and ran roughshod over the 80’s, largely nostalgic, weak link to better times. It was the halfway point.

                    Worse are the people who are ten years younger than you. The people that are just starting to come into my bar who were born in 1990 and after. They are born into darkness where any interpretation of the past is a lie (compare Steven Speilberg’s Back to the Future series to Pleasantville) and the platitudes of today have no counterpoint. The rebels of the 60’s offered their philosophy of NOW! as a counterpoint to traditional values. There is no counterpoint now, now is simply all that exists for them period and streams of other people all flowing in the river of now. The past is stupid, the future is unknowable – and in stark raving terror of a being with no purpose, in a world of no purpose, where nothing means anything and everything means nothing, they bury themselves in the river of other bobbing nothings (you’ve been Friended!).

                    I think I am just babbling now. I don’t get to express this stuff at work – obviously.

                    • Comment by John C Wright:

                      It does not sound like babble to me. It sound right on target, and a bull’s eye at that.

                    • Comment by DGDDavidson:

                      I too think you’re on target. They have had anything deeper than current fads violently stripped from them, and so they grasp shallowness and call it depth. Having recently gotten into the brony community, I have this made clear to me every day. What is a pleasant hobby to me is life, the universe, and everything to others my age or below my age because no one has given them anything better.

                      The only place I meet (at least face-to-face) sane people my age or ten years below my age is in the Church. I was surrounded by sane people while at seminary. I am surrounded by insane people working as an archaeologist.

                      I suspect I shall sooner or later end up back in the seminary.

  9. Comment by Robert Mitchell Jr:

    I am not a lawyer, but has the Constitution really been declared unConstitutional? It seems to me that the Supreme Court ruled 8-1 that Roberts is full of it, that the taxing power is not sovereign. And, by 5-4, the Supreme Court ruled that the Commerce Clause is not sovereign. I mean, this is a mess, but how binding is John Roberts babbling alone in a Corner, really?

    • Comment by John C Wright:

      Despite the reasoning of the various dissents, the holding of the case in effect allows Congress plenary powers. There is no imaginable act, not even the Americans Should Eat More Broccoli Act, which could be struck down as an overreach now. While it is true that this holding could, by a conservative court, be used to scale the Commerce Clause back into its constitutional proportions, the holding here basically allows for anything and everything. One could, for example, repeal the First Amendment, by (and I use an absurdly unlikely hypothetical) requiring Catholic institutions such as charity hospitals or universities or radio stations to buy abortifacients and contraceptives for their employees under the outrageous rubric that these are ‘health care’ provisions, and then use the taxing power to give an unelected bureaucrat the authority to impose this mandate. I would have used the example of trampling a cross or forcing a muslim to eat pork, but I decided to use a hypothetical even more outrageous just to make a rhetorical point.

      • Comment by Robert Mitchell Jr:

        That’s the part I’m trying understand. I mean, previous rulings do not legally bind the Supreme Court, so this mess doesn’t really affect the Court, right? And while Congress might be inclined to use this to run amok, eight of the Justices said no, so how much leeway does this give the would be dictators? It would seem that nothing much has changed, save the Madness of King Roberts. We have gone from the “Commerce Clause” hack to the “Commerce Clause or Taxing Clause” hack, with the numbers going from 5-4 to 5-4(maybe, depending on Robert’s mood). It’s a mess, but how is it a binding mess? What am I missing?

        • Comment by John C Wright:

          Previous ruling do bind the Supreme Court. That is what ‘precedent’ is. The legal term is ‘Stare decisis.’ The eight justices who said no were making comments called ‘dicta’ that is, wording in an opinion not part of the decision: it has no precedental power.

          It means, in short, that when Nancy Pelosi was asked under what power of the Constitution the Obamacare was legal, and she laughed in disbelief, and said “You’ve got to be kidding!” that SHE was right to laugh and all we who love the Constitution and believe in it were wrong to be angry at her laugh.

          In effect it means that Congress has usurped the plenary power of law making. It can make laws on any subject, and the Constitution does not bind or fetter it. The Beast is loosed.

          • Comment by Robert Mitchell Jr:

            So if “precedent” is binding (To the Supreme Court), then what penalty, what punishment do the four Justices who voted against the “Commerce Clause” face? Heck, what did ‘Stare decisis.’ do to stop the Commerce Clause from becoming as powerful as it has? Heck, were are “Precedent” and “Stare Decisis” mentioned in the Constitution? I didn’t see them mentioned. If we are following the Constitution, why shouldn’t I treat “precedent” and “Stare Decisis” the same way I treat the “Commerce Clause” and “Taxing” hack?

            • Comment by John C Wright:

              “Heck, were are “Precedent” and “Stare Decisis” mentioned in the Constitution?”

              I not sure if this question is meant seriously. The Constitution did not burn all law and all institutions to the ground like the French Revolution, discard that entire body of Anglo-American Law, burn all books and courthouses, erase all memories, and start again in Eden with men who had no past.

              What the Constitution did do explicitly was to form a more perfect union, that is, a federal agreement between the several states. It covers the basics of that union. It did not say anything about marriage, murder, it did not define theft, it did not revise contract law, it did not define the difference between law and equity, it did not establish the physical boundaries of the nation, it did not describe the flag or the great seal, it did not define the difference between judge trials and jury trials, it did not define the difference between civil law and criminal law.

              The founders held that English law, meaning the Common Law, still controlled American court decisions, except insofar as the abolish of the monarch and the new circumstances of the supreme law of the land necessitated a change. The police power once held by the crown, which is the plenary power to create laws, was explicitly vested in the several states.

              “So if “precedent” is binding (To the Supreme Court), then what penalty, what punishment do the four Justices who voted against the “Commerce Clause” face?”

              Penalty? I assume this question is rhetorical. Unless you are implying that no judge can be trusted to act as a judge except under penalty of impeachment or misconduct.

              If your questions are a rhetorical way of saying the High Court betrayed us, then, yes, I agree. They betrayed their oaths and, in effect, abolished Constitutional government.

              • Comment by Robert Mitchell Jr:

                I was serious. You seem to be saying that there is no mechanism for dealing with court mistakes like this one, that once Roberts has assumed his role as the King in Yellow, that we must forevermore follow his path. That doesn’t seem right to me. It appears to me that the Constitution was set up (in a legal sense) as the “North Star” by which the law is to set course, and that Precedent and ‘Stare decisis.’ are used in service to that, as valued but lesser guides. You seem to be saying that they trump the Constitution.

                • Comment by John C Wright:

                  “It appears to me that the Constitution was set up (in a legal sense) as the “North Star” by which the law is to set course, and that Precedent and ‘Stare decisis.’ are used in service to that, as valued but lesser guides.”

                  You are confusing two questions: legislatures make law, courts interpret law. The Constitution was a legislative act, indeed, the supreme legislative act, since it establishes in writing the basic framework of how the United States is to be governed. Like all legislative acts, there is some ambiguities or new questions that arise when the law is applied to specific cases. ‘Stare Decisis’ is a policy of interpretation, namely, that new court decisions will not ignore prior court decisions, lest a reasonable man be unable to deduce what the law is or how to conform to it. It is a basic principle of uniformity and continuity of legal interpretation. It is not a principle of how to legislate. Indeed, legislatures are the opposite: their principle is that no current Congress can by law bind a future Congress to pass or to repeal a law.

                  The difficulty here is that, even if Obamacare is repealed in its entirety, the Supreme Court has betrayed its core function, which is to act as a check on the unstoppable ambition of Congress. Like a bone being broken, the precedent has been established that the Congress can take over the medical profession, and dictate what individuals shall and shall not purchase each man with his own money, and nothing in the law or in the opinion confines Congresses power to take over to any profession or any individuals.

                  The reason why I was confident that the Supreme Court would strike down Obamacare was that, in effect, the Supreme Court just revoked Marybury v Madison. They do not have the power of judicial review, or, rather, the power henceforth will be exercised purely politically, by a body whose new role is legislative editors, a miniature Congress of unelected lawmakers; the Justices are not interpreters of the law. They resigned that office: because if this monstrosity is Constitutional, anything is.

                  • Comment by Robert Mitchell Jr:

                    I understand that, it’s that I thought the point of “Marybury vs. Madison” (which was invented whole cloth. Not a part of the Constitution, not precedent, not‘Stare decisis.’) was that the Law was to be viewed in light of the Constitution, right? I mean, if we pass a Constitutional amendment to fix the magic “Commerce Clause”, do the courts get to ignore it because of precedent? That’s what you seem to be saying to me. As to the Court getting rid of “Marybury vs. Madison”, eight of the Justices went by their reading of the Constitution and “Marybury vs. Madison”. Why is Roberts, the lone madman cackling in the corner, the winner? This might be the first time we have seen a Justice visibly crack on the Court and need to be committed, but we have to keep following his orders?

          • Comment by robertjwizard:

            Previous ruling do bind the Supreme Court.

            I appear to be under a misconception on precedent. I had thought that the SC could build on previous rulings, and that is what precedent meant. Thus a ruling that restricted “offensive” speech has always been said to set a dangerous precedent because it could be used for further restrictions of speech. I did not think it was binding. Of course a case that presents a question within the context of established law I would see as binding. I would assume that binding means the law in question is subsumed under existing judgements and not a direct question of a prior ruling itself, not a direct question or challenge to the law of which a specific case is an application.

            Could not the court, for instance, revisit Roe V. Wade, or some version thereof? Or is the fact that once ruled, it stands? This last doesn’t seem correct.

            I also plead ignorance of disgusting dimensions, and assumptions that I have been too lazy to correct.

            • Comment by John C Wright:

              Like most legal questions, the answer is both yes and no. When confronted with a prior case where the decision is the opposite of the current case, the Court can either distinguish the cases, in effect creating an exception or a new rule, or can overrule the prior case. Overruling a case is done very rarely, since it cuts against the principle of Stare Decisis. The standard that has to be met to overrule a prior case is very high. So, the prior case law is binding except in the extreme case where the court is willing to exercise its rarely-used power to overturn precedent.

  10. Comment by The Ubiquitous:

    A more sober analysis may be found at Mirror of Justice.

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