KINSELLA: The US Supreme Court threw out the unifying principle of law

Stare decisis is an unchangeable rule of law that a court will adhere to a pre-set precedent when making decisions.

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What if there are no more rules?

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What if there are no more laws? No more precedents, no more constitutions, no more charters?

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What if law only became what those in power say?

That — along with the obvious implications for American women — was one of the most disastrous consequences of the US Supreme Court’s decision to overturn Roe v. Wow last week. For half a century, Roe v. Wade has allowed American women to legally have safe abortions.

And now it’s gone. Decisions that had the effect of a constitutional proclamation – that is, could not be touched in law – were annulled. Evicted by three unelected and irresponsible partisan judges who had lied about the “staring decision”.

“Stare decisis” is a legal doctrine. It’s Latin, and basically means “to stand by the things that have been decided.” Stare decisis is an unchangeable rule of law that a court will adhere to a pre-set precedent when making decisions.

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Last week, the United States Supreme Court threw a ruling staring into the trash. They throw away the principle that holds law together, and democracy too. And it’s very, very unpleasant.

Law comes from statutes, passed by the legislature. But law also comes from wise decisions made by judges in the courtroom. Some of those decisions may be centuries old, but they still hold true today.

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In Great Britain, for example, there was the Bushel Case, from 1670, which prohibited a judge from trying to coerce a convict into a jury plot.

Ada Entick v. Carrington, in 1765, which limited the powers of the king and queen.

There was the case of Carlille, in 1893, which established the rules for making contracts.

In the US, there are such cases as well. The 1914 Weeks case, which says a person cannot be prosecuted on illegally obtained evidence. Or Brown v. Mississippi, in 1936, which said that confessions could not be obtained through police violence.

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In Canada, we also have no shortage of important legal decisions. Hunter v. It was Southam, in 1984, who threw evidence away when authorities rampaged through media newsrooms to find evidence.

Or R.v. Sparrow, in 1990, who argued that indigenous peoples have rights. Or the Feeney case, back in 1997, which established that the police couldn’t enter your home without a warrant.

It’s hard to imagine all those rules being pushed aside at the whim of some partisan hack. But that’s what happens when unelected, unaccountable judges are given unlimited powers, and an unbending view of the law: They can change society with the stroke of a pen. And there’s nothing you can do about it.

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Of course, many are happy that the US Supreme Court ended the right to abortion for American women last week. They feel that they are winning, and they arguably do.

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But if “staring decisions” no longer exist, how will conservatives feel if this or a future Democratic president decides to stack the high courts with his own partisans? What if future courts allowed authorities to confiscate personal property without compensation, or disenfranchised gun ownership, or declared pedophilia a legal form of sexual expression?

Missing decisis gaze cuts both ways, you know. When courts no longer feel bound by well-founded and long-accepted legal precedents, law will become a farce. It will only be what those in power say. It would be an abomination.

And make no mistake: The US supreme court, no longer bound by precedent, has signaled it will pursue gay marriage and subsequent equal rights. When there are no more rules, rules just become what those in power should say.

Americans are adrift in dark, dark waters, and God only knows where they will end up.

We should not follow in their footsteps.

— Warren Kinsella has been an assistant professor at the University of Calgary School of Law

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