Wednesday, July 14, 2010

The importance of historical memory....

....is shown dramatically by Justice Clarence Thomas' concurring opinion in McDonald vs. Chicago, where he argues not a due process interpretation of the 14th Amendment, but rather a privileges and immunities clause--and makes the case that an 1873 case which (to many legal scholars) had rendered that clause "a nullity" was itself incorrectly decided.

It is refreshing to see a Justice understanding the limits of stare decisis--which is a necessity of legal abominations like Roe v. Wade are ever to be overturned.  It is even more refreshing to see a Justice point to the suffering of his own people occasioned by the 1873 case as a major reason for returning to the Constitution instead of abiding by a shamefully wrong decision.

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