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Jens 'n' Frens |
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I got a chance to check out Scalia's dissent in Lawrence, and it's another entry in his "delenda est Casey" strain of jurisprudence.To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.I may remember incorrectly, but it seems to me that the Dickerson case a couple years ago was at least as frightening in its elevation of stare decisis above law, if perhaps less explicitly.Texas Penal Code Ann. ยง21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery.And the minimum wage.Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior.Rights that the democratic process recognizes do not need Constitutional protection. Rights that rely for their existence on their recognition by the democratic process have no protection. A "living" bill of rights is dead. |
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