||"dawnbreak in the west"|
Tuesday, September 20, 2005
One expression I've seen a lot of lately is stare decisis, which I am told means respect for precedent. Opposed to this is "constitutional originalism", which takes the Constitution as absolute, only emendable according to the manner in which that kitâb dictates (i.e. by Amendment).
This argument is not new; all scriptural cultures have run into it from time to time. In Iraq, the local Muslims fell out among each other circa 660 CE: 'Ali agreed with Mu'awiya at Siffîn that arbitration could be performed according to "the Book of God and the agreed-upon sunna"; but dissenters in 'Ali's camp ("Kharajites") argued that judgement was for God [through His Book] alone. Centuries later, the Hanafites maintained the opinion of 'Ali and Mu'awiya (if not quite the claims of eithers' family); but the Hanbalites defined away their understanding of "sunna", which to Hanbalites means the Hadith of the Prophet according to a hierarchy of accepted collections. The Hanafites would be analogous to followers of precedent, and the Kharajites and (far more comprehensively) Hanbalites would be scriptural originalists.
A respect for precedent is fine, if the jurisprudence was sound in the first place; but sometimes bad law can slip its way into the works. A case like that has to be either relegislated or else overturned. I would consider Plessy vs. Ferguson and Roe vs. Wade as examples of court-directed law which should not have been upheld as precedent.
Much of this is an academic exercise. Personally I agree with the arbitrators at Siffîn, that the Book takes precedence and after that the mutual sunna. Otherwise, why have a written Constitution at all? At the same time, constitutional originalism does not mean a disregard for precedent, just a lower regard. Originalists should remember that of themselves; others should recognise that originalists aren't all or even mostly opposers of precedent.
John Roberts seems to have the Siffîn mentality, and the Washington Post seems to understand that. Which is good for him, for them, and (in my opinion) for all of us.
Anyway, back to Roe-versus-Wade, which is an end justifying the means for Senator Reid and cetera...
Roe vs. Wade is not kitab by any sane reading of the Constitution. It is law because of jurisprudence: sunna by way of tafsir.
Now, does Senator Reid really believe in tafsir? More to the point, is he willing to go on record as supporting Plessy vs. Ferguson, which argued that segregation didn't overtly break the equal opportunity guarantees as long as the races were equal while being segregated? My guess is not
If Roe vs. Wade had gone the other way back in 1973, I think I am safe in saying that Senator Reid and his buddies would be less worried about what weight the Supremes should give to sunna versus kitâb. He'd be proposing amendments or sponsoring federal legislation; which, I'd argue, is what he should be doing instead of trying to corrupt the Constitution.
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