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To: OneWingedShark; Mr. K
Well, actually, that's not how it works.

Courts of original jurisdiction cannot set precedent. Even the old "law of the case rule" has mostly been abolished.

Only appellate courts can set precedent, and then only within their jurisdiction (e.g. the 5th circuit, or the state of Alabama). Only the Supreme Court can set precedent for the whole country.

But precedent is the bedrock of the entire legal system - going back to the days of the Vikings and the Anglo-Saxons. And if you despise legal precedent, what on earth are you going to set up in its place?

17 posted on 01/18/2014 4:22:04 PM PST by AnAmericanMother (Ecce Crucem Domini, fugite partes adversae. Vicit Leo de Tribu Iuda, Radix David, Alleluia!)
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To: AnAmericanMother

The problem with “precedent” as it is practiced is that it is so often nothing but a device by which the courts rewrite the Constitution.

I remember during the Lewinsky scandal how often the Screaming Faces would talk against doing something or other as specified in the Constitution on the grounds of “no precedent.” IOW, it hadn’t been done before. Which is irrelevant.

Watch for people to attack an Article V Convention of States on the grounds of “no precedent.”


20 posted on 01/18/2014 4:47:15 PM PST by Arthur McGowan
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To: AnAmericanMother
But precedent is the bedrock of the entire legal system - going back to the days of the Vikings and the Anglo-Saxons. And if you despise legal precedent, what on earth are you going to set up in its place?

Precedent, in itself is not so bad; the problem really is when it is elevated to the same level as Constitutionality.
That is what I despise about precedent: it is used as a tool to keep legitimate Constitutional arguments from taking place.

See Gonzales v. Raich, wherein the USSC declared that non-commerce can be regulated by congress;
which itself is built on the precedent of Wickard v. Filburn, wherein the USSC declared that intrastate commerce could be regulated by congress "because it has an impact on interstate commerce".

22 posted on 01/18/2014 5:17:46 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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