On not obeying a principle only halfway.

One of the arguments you sometimes hear about certain contentious political issues is that the Supreme Court has long settled the question and therefore people should really stop whining about it. This, for example is what we often hear about Roe v Wade. As you might suspect, however, there’s a difficulty with this line of reasoning.

The problem is that the Supreme Court’s authority to set precedents is not a freestanding thing. It rests on the prior authority of the United States Constitution. And if the Court is not itself honoring the plain, original meaning of the Constitution in its rulings (both in what it overturns and in what it lets stand), then it’s hard to see why we are bound to honor the Court’s rulings themselves.

See, the people who want me to honor the long-standing legal precedents they endorse get bothered when I look at the even-longer-standing Constitution and say they’re in violation of it. To put it another way, if (as they say) the Constitution is a “living document,” which means that we don’t have to hold too strictly to it, then why shouldn’t we also view the more recent precedents set by the Court as “living pamphlets” which are even flimsier in their ability to bind us?