Lawrence Huffman: evolution of “established law”

In his January 2 column, “Democracy is a Fragile Event,” Clarence Roller predicts that a Supreme Court ruling to overturn Roe v. Wade “could be the most important decision in 50 years”.

I agree. Whether these consequences are good for humanity is a question for another day and another forum.

He also suggests that one reason for not overturning the ruling is that it is “established law and established precedent”. Although this phrase is often used to describe the Roe decision, it is seldom noted in response that many erroneous decisions of the Court have been viewed as a precedent set and set before being overturned.

One of the most important cases of this kind was that of Dred Scott against John FA Sandford in 1857. Here Dred Scott, a slave, sued his master, John Sandford, for his freedom. The Supreme Court ruled, with Chief Justice Roger Taney writing for a 7-2 majority, that Dred Scott, because he was a slave, was not a citizen of the United States and had no rights that a white man was required to recognize.

This established precedent was called into question four years later by a bloody civil war between the northern and southern states. In 1865, as the war drew to a close, the 13th Amendment to the Constitution was ratified so that no federal court could again reach this particularly inhumane conclusion.

In 1868, the 14th Amendment was ratified to prevent states from doing so by passing and enforcing laws that did not provide “equal protection” under the law. In 1870, the 15th Amendment was ratified to ensure that the right to vote could not be denied by individual states. It was believed that these amendments would prevent federal courts from being used to promote or permit racism, as they were bound by the newly amended Constitution.

Southern states, however, continued to institutionalize racism by maintaining separate school systems for white and black children. They were again helped to uphold this abomination by the federal courts. In 1896, the Supreme Court dealt with the Plessy v. Ferguson. The court, in a 7-1 decision, ruled that states can maintain separate schools for black and white children, as long as they are equal. This nonsense has remained a set precedent and a well established law for 58 years!

It was not until 1954 that the court revisited this question when it heard Brown v. Board of Education. In a 9-0 unanimous decision, the Supreme Court ruled that race-based school systems cannot be both separate and equal. Specifically, the court found that separate educational institutions are “inherently unequal”. Almost 20 years later, the Supreme Court once again considered the question of who is entitled to protection under the Constitution. This time, the court looked into the question of legal personality.

In January 1973, the Supreme Court issued its opinion on two cases presenting similar factual patterns. In Roe v. Wade and Doe v. Bolton, the plaintiffs sued the attorneys general of Texas and Georgia because those states prohibited abortion. The court ruled in a 7-2 decision that women have a “fundamental right” to abortion, and states’ interest in regulating the exercise of this right for “maternal health” and “life. potential of the fetus ”was only authorized in the third trimester.

With the ruling, the court was able to sweep away abortion laws in all 50 states (as it has since done in many other cases) because of the 14th Amendment’s “due process” clause, which requires “Equal protection” for all citizens of state and federal laws. Arguing against this position during oral argument, Texas attorneys argued that the state has a compelling interest in regulating or even banning abortions to protect prenatal life, as life begins at conception.

The court, in addressing this issue, said there was no indication that the use of the word “person” in the constitution was intended to include fetuses. Therefore, the court ruled that a fetus should not be considered a “person” with a legal and constitutional right to life.

The court went on to say, “We don’t need to resolve the difficult question of when life begins.” The tribunal noted that there was (in 1973) no consensus among the disciplines of medicine, philosophy and theology on this issue, and therefore the tribunal was “not in a position to speculate on the responnse “.

This is a brief history of when and how the tribunal dealt with two fundamental questions, namely: who has the right to be a citizen and who has the right to life.

Federal courts are not always right the first time. They no longer become righteous once they have become established precedents and established law.

Fortunately, we have a Constitution that establishes a three-tier system of government in Articles I, II and III and has been amended 27 times to ensure it remains a living, living and relevant document while preventing the federal government from supplanting basic human rights. rights.

In short, Roller is right when he says that democracy is fragile. To be nurtured and preserved, it must have representative legislatures, conscientious executives and an independent judiciary whose function is to ensure that these first two branches conduct their business within the confines of the greatest document ever conceived, written and put implementation on the issue of self-government. .


Lawrence A. Huffman is a lawyer in Lima.