Category: Uncategorized

By way of preface, in 2004 I wrote the post “Game Over, Man. Game Over” which I concluded thus:

Mike Spenis said “the future of our freedom ultimately rests with the court’s willingness to periodically reexamine the law,” but the evidence is plain that the courts will not do that. They will use obviously flawed precedent so long as it “comports especially well with our notions of good social policy.” And even if it doesn’t, the courts will often bow, as Kozinski does here, to precedent they abhor. We depend upon the honor and intellectual honesty of the judges who make up the Justice system, yet it seems that those who are truly honest and honorable are outnumbered by those who are “willing to bury language that is incontrovertibly there.” The honest and honorable ones abide, under the rule of law, by precedent that is otherwise insupportable. The middling honest ones, the ones Justice Brandeis labled as “men of zeal, well-meaning but without understanding” “build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text.” And those decisions stand, without review, periodic or otherwise, to serve as the next step down the road to Hell.

Tonight during a short discussion I had with Alan Gura he said something that boiled that paragraph down to a couple of sentences (from memory, so I may be paraphrasing):

Stare decisis is like gun control. It only affects those who respect the law.