Participants:
Series Code: LI
Program Code: LI200481B
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00:01 Welcome back to the Liberty Insider.
00:02 Before the break, 00:04 I was holding forth on Ruth Bader Ginsburg, 00:08 a woman of great integrity 00:09 that passed away recently from life 00:12 and from her life tenure on the Supreme Court 00:15 and the battle that's picking up again, 00:18 on the different factions 00:20 trying to stack the Supreme Court, 00:22 which is a wrong concept to start with. 00:25 I want to share this editorial that I wrote last year 00:29 about this sort of phenomenon 00:31 was called Stare Decisis revisited, 00:34 hopefully upon there 00:35 because Stare Decisis means established law. 00:38 And the idea in the judiciary is 00:40 if something is settled and established, 00:43 you don't lightly overturn that, 00:44 it has its own weight of continuity. 00:49 And I wrote, "These are not normal times. 00:52 We seem to be living 00:53 through the Pauline prediction 00:55 that what can be shaken 00:56 will be shaken in Hebrews 12:27. 01:00 I use the Bible text advisedly 01:02 because so many people of faith 01:04 seem to have committed themselves 01:06 to shaking the system of secular laws 01:08 to bring about moral renewal. 01:12 Liberty has not spent 01:13 a lot of space on Roe v. Wade in the years 01:16 since that 1973 Supreme Court case. 01:21 In those 46 years," 47 years now, maybe nearly 48, 01:26 "the Christian opposition to this abortion precedent 01:28 has swelled from moral outrage. 01:31 It's such a blatant denial of the value of life 01:34 through two violent acts, 01:36 including murder 01:37 against those who perform abortions, 01:41 and finally on to concerted political action 01:44 to gain power and rollback this 01:47 and other objectionable precedents. 01:51 I have commented before in Liberty 01:54 and even on this program 01:56 at the rather ironic doctrinal dynamic 01:58 that once saw Roman Catholic leadership 02:02 upfront in opposition 02:04 for reasons that had everything to do 02:06 with original sin and the immortal soul." 02:10 It's worth remembering, 02:12 that is a base 02:13 why the Roman Catholic Church objects to Roe v. Wade. 02:18 I think they have right to object to it, 02:20 but the theological dynamic is something 02:23 that Protestants don't accept, 02:25 original sin and the immortal soul, 02:28 at least not the first. 02:29 "But later joined in arguably overtaken 02:32 by American Protestant leadership, 02:34 which seem not to care as much as Luther et al 02:39 about such differences. 02:41 But for the point of my comments here, 02:43 it makes little difference. 02:45 A unified Christian Action Coalition 02:48 is on the move to rollback Roe 02:52 and as many by their own statement 02:54 says 120 of the court actions that they find offensive. 03:01 So-called heartbeat bills in a dozen states 03:04 now criminalize all 03:05 but the most early term abortions. 03:09 Alabama recently went ahead 03:10 and passed an openly anti-abortion bill 03:13 that could apply penalties of up to 95 years in prison 03:17 to doctors who perform abortions. 03:20 It passed the State Senate by a vote of 25 to 6. 03:25 Of course, such a bill 03:26 is in violation of Supreme Court precedent 03:30 and by design, 03:33 I think it's obvious that this is in expectation 03:37 that the newly conservative Trump court 03:39 will promptly overturn Roe 03:41 when this challenge is taken up. 03:46 I know that some recent applicants 03:48 murmured against established law 03:51 during their confirmation, 03:52 but many think 03:54 that that is a necessary white lie to do good later on. 04:00 A while back, I read some comments 04:01 on all of this by Jeffrey Tubin 04:03 writing in the New Yorker, in May 27, 2019. 04:09 Justice Thomas wrote for the majority 04:11 and franchise Tax Board of California 04:14 versus hire. 04:16 I know these things seem dull and tedious 04:18 to many listeners, but they're important, 04:20 these cases, "on whether," 04:23 in that case, 04:24 "on whether the 1979 precedent of the court 04:27 should be overturned. 04:29 In this view," writes Tubin, 04:31 "it is fine for the court to do away with Stare Decisis 04:36 or the rule of precedent. 04:39 If the current majority believes 04:41 that the precedent represents an 'incorrect' resolution 04:46 of an important constitutional question. 04:49 Tubin writes, 04:50 this is not how Stare Decisis is meant to work. 04:54 What he didn't write, 04:56 but I think apropos 04:57 is that this looks like legislating from bench, 05:01 something we've been warned about 05:02 for years by the very same people 05:04 who now attempt it." 05:07 Back to Roe again. 05:09 "I think it obvious 05:11 that in practice the phenomenon of gratuitous abortions 05:15 often used as birth control have cheapened 05:19 or has cheapened the value of life 05:21 and paved the way for some people 05:24 seeming unnecessary in a utilitarian society. 05:29 Of course, before Roe, people were treated... 05:32 Women were treated badly in this regard 05:34 and often bore both the blame 05:36 and the consequence for unwanted pregnancies. 05:39 So it cannot be good for Big Brother government 05:43 with Uncle Faith 05:45 to lay a heavy hand on personal behavior. 05:49 This is the conundrum here. 05:51 Yes, abortion as it is come to exist 05:53 as part of a moral decline in society. 05:57 And yes, people of faith 05:59 risk being part of the stoning crowd 06:02 who brought a woman before Jesus. 06:04 Somehow, faith supported legal initiatives 06:07 should be more in line with Jesus advice to her, 06:11 'Go and sin no more, ' He told her in John 8:11. 06:15 Now back to that Latin term. 06:18 I always find it very telling that so much of the law, 06:21 and so much of Roman Catholicism 06:24 is steeped in Latin, 06:26 evidence that we are not so far removed 06:29 from the long lived or slow to die Roman Empire. 06:33 And I write this in gratitude 06:35 that I was only a generation removed 06:38 from obligatory Latin lessons in school. 06:41 Stare Decisis is a term derived, 06:43 a central to any discussion of the law. 06:46 It means to stand by what has been decided. 06:51 Or as a more elongated translation 06:54 of the larger Latin statement goes, 06:56 stand by what has been decided 06:58 and do not unsettle the established. 07:02 It is a good legal principle in any society, 07:04 aiming its stability as the Romans did. 07:08 I remember once, a few years ago, 07:09 listening with much interest 07:11 to the inimitable Justice Antonetta Scalia, 07:14 expand on his principles of original intent 07:17 in interpreting the US Constitution. 07:20 He was hardly a legal neophyte, 07:23 and his general principle had matched or recommended, 07:26 even if it tended to play amateur psychologist 07:29 with dead icons 07:31 and ran the risk of summoning up 07:32 the lesser of the founders intentions." 07:35 What I'm saying there in plain language 07:37 and trying not to be clever, 07:38 he would look back 07:40 and try to divine what the founders meant. 07:44 Well, other than the hard words in the Constitution, 07:47 you're really sort of parting back the curtains, 07:51 a musty mausoleum 07:54 who could know what they thought 07:56 in their innermost minds, what they really meant. 07:59 We've got a pretty good idea that in some cases, 08:02 they view was quite truncated on today 08:05 and it's worth knowing 08:07 that much of what happens on the Supreme Court 08:10 is divided between literal as you look at the words, 08:13 and some who take those words as principles 08:15 and try to apply them in a modern world. 08:18 It's an arguable point, 08:19 but a little jump from the literal words. 08:24 Anyhow, it says, "At one point in his lecture, 08:26 he railed against English common law, 08:29 and indeed on any other legal system 08:31 as being irrelevant. 08:32 But I think I saw a twinkle in his eye as he said it, 08:36 and I took it as more of a dare than effect 08:39 because US law is deeply indebted 08:42 to English common law. 08:43 How could it be otherwise? 08:45 The 13 original states were English colonies. 08:49 One little window into the legal awareness 08:51 is Jefferson's discussion 08:53 of the origin of morality and common law, " 08:56 where he clearly says 08:58 that we inherited in the United States 09:01 English common law, I remember... 09:05 Sorry. 09:06 "Further, in spite of the revolutionary language 09:08 of the American Revolution, 09:09 it was not the radical ejection of the old 09:13 that the French Revolution introduced. 09:16 If the French Revolution... 09:18 In the French Revolution, 09:20 the old political order was he attained 09:22 and religious structures demolished. 09:25 The American Revolution took to the next level 09:28 the aspirations of republicanism 09:31 that had already stood England in its civil war, 09:34 and nevertheless ended up 09:36 with its own versions of wigs and Tories 09:39 and the upper and lower houses 09:41 and the presidency set up suspiciously 09:44 like a constitutional monarch of the time. 09:47 And I say thank God Washington refused the crown. 09:50 It was offered to him. 09:51 I know the current President sees article two 09:54 as conferring unlimited power, 09:56 but the reality is that the king of England 09:58 had little more than veto power, 10:01 and the presidency was intended 10:03 to be the instrument of the people. 10:06 During the alarms 10:07 that followed the September 11 attacks. 10:10 Various attempts were made to change to settle the law. 10:14 I remember well the comments 10:15 of a George Washington Law School professor 10:17 that presidential actions 10:19 on arbitrary imprisonment 10:20 for anyone designated an enemy combatant, 10:23 put us back before Runnymede and the Magna Carta of 1215. 10:28 English legal precedent," 10:30 yes, "part of the founding principle 10:33 in the US of Habeas Corpus 10:35 and the full legal process as protection against tyranny. 10:39 Once we turn against the settled laws 10:42 and liberties that define free people, 10:45 anything is possible. 10:48 A morality unmoored from law 10:52 is apart from an inbuilt contradiction, 10:55 mortal peril for all freedoms. 10:58 How easily some forget 11:01 that the Soviet Union and the grand dictatorship 11:04 of the proletariat in advanced was unsettlingly moralistic. 11:10 How few remember 11:11 that it was a yearning for moral renewal 11:15 that raised the Nazi brown shirts 11:17 to power in Germany. 11:19 And who has the temerity 11:21 to raise the topic of the Inquisition, 11:24 not just in Spain 11:25 but throughout the old and new worlds, 11:28 an inquisition that overturned 11:31 the logical freedom and ruts 11:33 in its search for moral security." 11:36 You know, these are unsettling 11:40 what ifs and maybes and parallels 11:43 to the past that I'm raising, 11:45 but we need to be unsettled in our assumptions 11:48 because there are many who are wanting 11:50 to unsettle established law. 11:54 I personally 11:55 and I think anyone of any biblical morality 11:58 is uncomfortable with something like 12:01 the Roe v. Wade dynamic and what has brought with it, 12:04 but we should be equally uncomfortable 12:06 against doing what Jesus warned against 12:09 saying that the kingdom of God gives us the power 12:13 to interfere with the kingdom of man. 12:16 We're to bring God's kingdom in hearts here and now 12:21 to be fulfilled in its great fulfillment 12:23 in the future 12:24 when God establishes His eternal kingdom, 12:27 but to meddle with compulsion to faith is not good. 12:33 We fought against 12:35 those who from the Islamic world 12:36 have crossed this line and think that they can force 12:39 and kill in the name of religion. 12:41 Why should we think it any better 12:43 if we do the same 12:45 in the name of a generic Christian morality 12:50 in a country of free republicanism? 12:54 Not good. 12:55 Stare Decisis is a good principal. 12:59 Protection of the established is good 13:02 and we should work towards 13:04 establishing the God's will in our lives. |
Revised 2020-11-23