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Monday, January 31, 2005

Retitled: "Blame Canada"

Today we are being visited by a professor from George Mason School of Law. (A school from which I was offered a small scholarship). The topic of discussion:

"Lawrence v. Texas: Worst Supreme Court Decision in History?"

For those who don't know what Lawrence v. Texas is, well, uh . . . it was a Supreme Court decision. (To state the obvious) It decriminalized sodomy. Well, it actually did more than that. It overturned two centuries of Supreme Court precedent. It expanded some pretty "iffy" substantive rights.

I'm not really all that interested in what goes on between two people in the privacy of their bedroom. For that matter, the State isn't either. This guy Lawrence, he wasn't even prosecuted. Unfortunately, though, this decision could be taken much farther.

What really worries me is giving carte blanche to the Court to determine these things. As Jefferson once wrote, the Judiciary is the one branch with the power to undue our Republican Democracy.

Fortunately, most judges are responsible and hold case precedent (stare decisis) in such high regard that it borders on a religion. A judicial religion. It is just that several judges are losing their faith.

Where we ought to be concerned is when a panel of judges, on the basis of a 5-4 slim majority, completely overturn precedent. They create new law without so much as attempting to, perhaps, use traditional reasoning to do it.

In Massachusetts, that is what their supreme court did when they legalized same-sex marriage. I studied the decision over the summer. On a slim 5-4 majority, they turned the entire nation on its ear.

To do it, they completely disregarded prior Massachusetts law, prior U.S. law even. At one point the majority says (obviously paraphrasing):

"Okay, so we don't know how we can do this or what to do 'cause it ain't never been done before; well, 'least in the U.S. But we want to do it. And we can, y'know, since we're the Supreme Court. So, uh, because of this we're going to use Canadian law. Yeah, that's the ticket. We'll borrow some wisdom from the 'mounties' to our north. Therefore, a Canada court has said it -- in Massachusetts so shall it be written, so shall it be done. Just do it! No arguing. 'Nuff said. Thank you. Goodbye."

And they got away with it. Why? Because they are the Court . . . and they can do anything.

That is yet another reason to hate Canada.

'Nuff said. Thank you.

And Goodbye.


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