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Originally Posted by Ghost1958
...So how is it in anyway moral or legal for the gov to infringe on pee existing human rights that existed before the nation or it's gov or courts existed.
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That's another, and a philosophical, discussion. But as long as we're discussing the law or politics, things are as they are.
While our system offers opportunities and ways to change the law, what the rules are, and how things are done, until such things actually get changed in the real world we must learn to deal with what we have.
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Originally Posted by Ghost1958
...Precedence is not law....
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First, the word is "precedent." The plural is "precedents."
Second, in a way it is the law. Law, i. e., statutes enacted by legislative bodies, constitutions and charters adopted by political entities to govern the operations of those entities, and past judicial opinions, is essentially a tool used by courts to decide the outcome of a dispute or disagreement. So when a court writes an opinion deciding a matter in contention, it is explaining how it applied the law to the facts and circumstances in order to decide the outcome.
Precedent has been fundamental to our legal system and for some 500 years to the Common Law of England, on which our system is based. The doctrine of
stare decisis (to stand by the thing decided), or precedent, means that legal principles and interpretations used by a court to decide a matter will be used by other courts within the same system to decide similar matter.
It is founded on the notion that similar matters should be decided in consistent ways. Do you really think it would be satisfactory for any issue decided one way at one time to be decided in a completely different way another time? Because we have the doctrine of
stare decisis how courts have decided past cases will give us clues as to how courts are likely to decide future, similar cases.
Of course sometimes when precedent and the law as applied by a court don't achieve a satisfactory result, a legislature can change the law -- checks and balances at work. Recently there was the case of
Kelo v. City of New London, 545 U.S. 469 (2005). It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a
Kelo result.