The Consequence of Bad Legal Precedent in American Legislation

PrecedentKeep in mind every law the Congress and the President of the United States pass, sets what is called “Precedent“. Which in common law legal systems, a precedent or authority is a principle or rule i.e. Law established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

“The better the constitution of a State is, the more do public affairs encroach on private in the minds of the citizens. Private affairs are even of much less importance, because the aggregate of the common happiness furnishes a greater proportion of that of each individual, so that there is less for him to seek in particular cares. In a well-ordered city every man flies to the assemblies: under a bad government no one cares to stir a step to get to them, because no one is interested in what happens there, because it is foreseen that the general will will not prevail, and lastly because domestic cares are all-absorbing. Good laws lead to the making of better ones; bad ones bring about worse. As soon as any man says of the affairs of the State What does it matter to me? the State may be given up for lost.

The lukewarmness of patriotism, the activity of private interest, the vastness of States, conquest and the abuse of government suggested the method of having deputies or representatives of the people in the national assemblies. These are what, in some countries, men have presumed to call the Third Estate. Thus the individual interest of two orders is put first and second; the public interest occupies only the third place.” by Jean-Jacques Rousseau “The Social Contract” 1762

Stare Decisis: [Latin, Let the decision stand.] The policy of courts to abide by or adhere to principles established by decisions in earlier cases.

In the United States and England, the Common Law has traditionally adhered to the precedents of earlier cases as sources of law. This principle, known as stare decisis, distinguishes the common law from civil-law systems, which give great weight to codes of laws and the opinions of scholars explaining them. Under stare decisis, once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction.

For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. The U.S. Supreme Court and the state supreme courts serve as precedential bodies, resolving conflicting interpretations of law or dealing with issues of first impression. Whatever these courts decide becomes judicial precedent.

Black’s Law Dictionary defines “precedent” as a “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.

When you let the government pass laws that allow them to confiscate peoples private property without the benefit of a trial, simply by being charged with a crime.

Or, When you let the government pass laws that allow them to confiscate peoples private property without their consent, as in Eminent Domain abuse.

When you let government confiscate all the gold bullion and pass legislation to outlaw the possession of it in private hands, or sign executive orders to accomplish the same, as liberal hero Franklin D. Roosevelt did in 1933.

When you let the government inter thousands of Americans simply because of the race of their ancestors as FDR did in WWII.

When you let the government pass laws to require you to wear seat belts in your personal vehicles.

When you let government pass laws that force American’s to buy auto insurance, you open the door to them forcing you to buy health insurance, i.e., Obamacare.

When you let government pass laws to ban smoking in various areas.

These ALL set “Precedent” to further “Infringe” on your rights, liberties and freedoms guaranteed by the Constitution!

Example: The confiscation of gold set the precedent for the government to confiscate your IRA’s and/or 401(k) as the democrats have suggested doing.

Example: The internment of American’s of Japanese ancestry set the precedent for the government internment of others without benefit of legal charges, or trial. The FEMA camps come to mind that we have all heard about.

Example: The Supreme Court had the Legal Precedent to Strike Down the Onerous Obama Health Care Bill. It chose not to, thereby setting another precedent for the government to have even more control over our lives, liberties, freedoms and happiness.

Just as the IRS has shown, the potential for abuse should be taken into consideration and shown high regard when Congress is contemplating what legislation they vote for. The NSA data mining and Obamacare are ripe for abuse. As a matter of record the Tea Party Patriots were against the Patriot Act and the immigration debate, Obamacare, the Patriot Act, and countless other un-constitutional laws passed by our government, especially when the majority of the American people are saying “NO”, the disregard and lack of deference to the people by our government shows the imperative need for We The People to hold our government accountable.

I never could think that a bad Precedent was a good Argument for a bad Proceeding: No Precedent ought to be blindly followed; it ought to be examined by the Rules of Law and of Reason, and if it be found to be against either, a contrary Precedent cannot be made too soon.

“Bad laws are the worst sort of tyranny. In such a country as this, they are of all bad things the worst, worse by far than any where else; and they derive a particular malignity even from the wisdom and soundness of the rest of our institutions. For very obvious reasons you cannot trust the Crown with a dispensing power over any of your laws” – Edmund Burke Speech previous to the Election at Bristol.

Of all Tyranny, that Tyranny is the worst, which has the Formalities of Law for its Support. Every other Tyranny is the Effect of misguided and ungoverned Passions: this is the Result of Deliberation, and even Reason is prostituted to its Purposes. The former may find Motives for its Excuse: the latter is out of the Reach of Absolution. Lawless Tyranny is confessedly lawless. Legal Tyranny adds Treachery to Tyranny: for it acts in Disguise, and deceives with the Appearance of Truth. But this Argument applies to the superior Baseness of this Tyranny only. The Absurdity of it is almost too preposterous to mention. Tyranny clothed in the Forms of the Constitution! How irreconcilable the Terms with the Ideas! And how little able to stand the Test of Examination! -Edmund Burke excerpt from letter to the sheriffs of Bristol

It is the nature of tyranny and rapacity never to learn moderation from the ill success of first oppressions; on the contrary, all oppressors, all men thinking highly of the methods dictated by their nature, attribute the frustration of their desires to the want of sufficient rigour. Then they redouble the efforts of their impotent cruelty; which producing, as they must ever produce, new disappointments, they grow irritated against the objects of their rapacity; and then rage, fury, and malice (implacable because unprovoked) recruiting and reinforcing their avarice, their vices are no longer human. From cruel men they are transformed into savage beasts, with no other vestiges of reason left but what serves to furnish the inventions and refinements of ferocious subtlety for purposes, of which beasts are incapable, and at which fiends would blush. – Edmund Burke Speech in the Impeachment of Warren Hastings, Esq.

The public good is in nothing more essentially interested, than in the protection of every individual’s private rights. So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.” – William Blackstone

“Self-defense is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the laws of society. And, lastly, to vindicate these rights, when actually violated and attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self preservation and defense. Free men have arms; slaves do not.” – William Blackstone

If Congress and the President do what they do without precedent, if it appear their duty, it argues the more wisdom, virtue, and magnanimity, that they know themselves able to be a precedent to others. Who perhaps in future ages, if they prove not too degenerate, will look up with honor, and aspire toward these exemplary and matchless deeds of their Ancestors, as to the highest top of their civil glory and emulation. Which heretofore, in the pursuance of fame and foreign dominion, spent itself vain-gloriously abroad; but henceforth may learn a better fortitude, to dare execute highest Justice on them that shall by force of Arms endeavor the oppressing and bereaving of Religion and their liberty at home: that no unbridled Potentate or Tyrant, but to his sorrow for the future, may presume such high and irresponsible license over mankind, to havoc and turn upside-down whole Kingdoms of men, as though they were no more in respect of his perverse will.  Excerpt from The Tenure of Kings and Magistrates: John Milton 1690

Men who look upon themselves born to reign, and others to obey, soon grow insolent; selected from the rest of mankind their minds are early poisoned by importance; and the world they act in differs so materially from the world at large, that they have but little opportunity of knowing its true interests, and when they succeed to the government are frequently the most ignorant and unfit of any throughout the dominions.”- Thomas Paine

“If ever time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.” – Samuel Adams

See also:
Joseph Baldwin: Address 1892, to National Teachers Association in New York
PATRIOT SONS OF PATRIOT SIRES by Rev. Samuel Francis Smith 1808-1895
THE SOURCE AND SECURITY OF AMERICAN FREEDOM AND PROGRESS by Courtlandt Parker 1876
THE GENIUS OF AMERICA by Hon. Dr. Felix R. Brunot July 4, 1876
A PRAYER FOR THE NATION by Rev. William Bacon Stevens July 4, 1876
The Wisdom of Founder John Adams Part 1: Novanglus Papers
True American Patriotism Defined by Hon. Curtis Guild and H. F. Kinnerney 1876

15 thoughts on “The Consequence of Bad Legal Precedent in American Legislation

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