Term Paper on "Stare Decisis, From the Latin"

Term Paper 12 pages (3955 words) Sources: 1+

[EXCERPT] . . . .

Judges were drawn from these differing groups and could come up with opposing decisions, even while relying on the same Constitution to determine individual and group rights. Today, pro-choice groups argue that it violates a woman's Constitutional right to privacy to deny her abortion-on-demand. In contrast, pro-life groups argue that it argues a fetus's Constitutional right to life to provide abortion in demand. Given that approximately half of Americans self-identify as pro-life and approximately half self-identify as pro-choice, without stare decisis, there would be no consistency in abortion litigation. Furthermore, recent state legislation regarding homosexual marriage demonstrates how divided the country is on the issue of same-sex unions. Since the decision in Loving v. Virginia the U.S. Supreme Court has recommended marriage as a fundamental right. Furthermore, the U.S. Constitution expressly provides that states are to give full faith and credit to legal decisions and relationships created in other states. Therefore, the effects of stare decisis on the issue of same-sex marriage may be decisive in determine whether or not marriage will continue to be defined as the union between a man and a woman. Careful consideration of the views expressed by both the opponents and proponents of stare decisis and these hot-button issues lead one to the conclusion that stare decisis is an appropriate and useful tool in the U.S. Federal system of government.

A defense of the doctrine of stare decisis starts with an explanation of the Federal system of government. The Federal system provides for three different branches of government, each with separate powers. The Federal system gives the legislature the sole power to make law, but it reserves to the judicial branch the power to interpret existing law, including the United States Constitution. Under a Federal system of government, the legislature has the ability to change the Constitution to reflect changes in the mores or beliefs of the citizenry; however, to protect the rights of the minority from the whims of the majority, the founding fathers made Constitutional change a more difficult process than the enactment of ordinary legislation. Therefore, because the legislature, and ultimately the people who chose their legislators, have the ultimate power to determine laws and the Constitution, the doctrine of stare decisis does not give judges the power to create law, but instead constrains judges from interpreting law according to their whims. Furthermore, the doctrine of stare decisis ensures that the U.S. Supreme Court is the ultimate interpreter of legislative and Constitutional legal issues.

An examination of the issue of abortion rights demonstrates the important role that stare decisis plays in abortion legislation. When Roe was decided, medical science did not provide for fetal liability before the third trimester. Pro-life opponents of stare decisis argue that the U.S. Supreme Court should overrule the decision in Roe based on changing public attitudes against abortion-on-demand and advances in medical technology (Lessner). Pro-choice proponents of stare decisis argue that Roe establishes that a woman has a Constitutional right not to be forced to carry a child, and that such a right exists regardless of public attitude or any advances in medical technology short of those that would permit a fetus to develop wholly outside of a woman.

In reality, the doctrine of stare decisis and its application to Roe and subsequent abortion-rights decisions has been helpful to both sides in the abortion-rights debate. Since the decision in Roe, women choosing to have abortions during their first and second trimesters have been able to seek them. Pro-life people have also seen Roe provide certain protections to the unborn because it limited third-trimester abortions to those cases where an abortion was necessary to preserve maternal health. Without the doctrine of stare decisis, there are two opposing scenarios that would be possible. Only by examining those possibilities can one see how important the doctrine of stare decisis is in the uniform administration of justice.

If the decision in Roe did not have the value of precedent, a woman seeking a legal first-trimester abortion, could be prevented from obtaining an abortion by a pro-life judge's interpretation of the Constitution. That judge could determine that a fetus had a Constitutional right to life, which trumped the woman's right to privacy. Given the speed of the judicial system, that woman would be unable to obtain an abortion within the period of her pregnancy.

Furthermore, if the decision in Roe did not have the value of precedent, a doctor providing illegal third-trimester abortions could avoid criminal liability if his case appeared before a pro-choice judge. That judge could determine that Roe's trimester system was an artificial constraint, and that given medical advancements and fetal viability at four months there was no reason to differentiate between a four-month fetus and a nine-month fetus, and dismiss charges against the doctor. Even if the State appealed and the doctor was eventually convicted, he could commit an untold number of third-trimester abortions while awaiting review.

Obviously, given the two stated scenarios, both sides of the abortion-issue need the ability to rely on a judicial interpretation of constitutional law that expressly defines whether or not abortion is permissible. However, the doctrine of stare decisis is only one part of the American judicial system. Should the values and mores of the American people change in such a way to determine that abortion is inherently and always immoral and should therefore be illegal, the people have the ability to enact a Constitutional amendment, prohibiting abortions. Both sides of the issue shy away from the idea of a Constitutional amendment regarding abortions, the pro-life movement because it is difficult to amend the constitution and the pro-choice movement because it does not believe that Constitutional amendments should reflect moral values. However, the Federal system provides that the Constitution is the highest law of the land and for amendments to the Constitution. Furthermore, there is a historical basis for Constitutional amendments being based on the changing moral values of the American people. Momentarily revisiting the issue of segregation and equal rights, it was only through the enactment of the Thirteenth Amendments that American laws reflected a belief that slavery was inherently immoral and should therefore be illegal in the United States. Should the American people decide that abortion, like slavery, is inherently immoral and choose to amend the Constitution to reflect that changing ideal, and then the courts will be constrained by that new amendment. Until that time, the American people, both pro-life and pro-choice, have the right to rely on a consistent application of abortion law.

The issue of same-sex marriage also has people advocating for and against the application of the doctrine of stare decisis. Although the opponents of same-sex marriage are frequently pro-life, in regards to the issue of same-sex marriage, they are proponents of the doctrine of stare decisis. In Bowers v. Hardwick, the U.S. Supreme Court upheld Georgia's anti-sodomy law as it was applied to homosexual forms of sodomy. Proponents of same-sex marriage oppose the doctrine of stare decisis as applied to the Bowers line of case law.

However, in addition to the decision in Bowers, there is the decision in Loving v. Virginia, wherein the U.S. Supreme Court recognized marriage as a fundamental right. In Loving, the state of Virginia had attempted to outlaw mixed-race marriages. The Lovings were a mixed-race couple that was married outside of the state of Virginia and moved into the state. Virginia refused to recognize the marriage. The Court determined that Virginia did not have that right. Combined with the Full Faith and Credit Clause, the application of the doctrine of stare decisis would appear to indicate that if one state recognizes a homosexual couple's right to marry, other states are compelled to recognize that marriage, the Defense of Marriage Act notwithstanding.

The issue of same-sex marriage illustrates why stare decisis is an important method of judicial constraint. Because there are potentially conflicting U.S. Supreme Court decisions regarding the right of homosexuals to marry, it is clear that the Court is not the body that should make further determinations on the issue. When the decision in Loving was issued, portions of America did recognize mixed-race marriages and there was an existing Constitutional Amendment prohibiting discrimination on the basis of race. However, the Loving court probably was not able to anticipate that its decision may one day be applied to support a homosexual couple's right to wed. In contrast, at the time that Bowers was decided, gay rights was in its infancy and the decision of the Bowers court did not reflect a changing society that has grown less tolerant of discrimination on the basis of sexuality.

Just like the issue of abortion rights, the application of stare decisis in the area of gay rights mandates that the courts follow prior decisions to determine whether or not homosexual sexual relationships are illegal and whether discrimination against homosexual couples seeking to marry is legal. Because there is a conflict in those decisions, the doctrine of stare decisis helps indicate that there is… READ MORE

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