Court liberals find right to crony capitalism in "emanations and penumbra" of Constitution

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The U. S. Supreme Court issued its ruling today in the case of Kelo v. New London, a test of the limits of government power to use eminent domain. The Court, by a 5-4 majority, ruled in effect that there are no limits, that government may use the threat of force to take private property for the purpose of giving it to another private party, as long as they can make some claim to public benefit, such as increased tax revenues.

If I lived in the neighborhood between I-44 and Promenade Mall, I'd be very nervous right now. That'd be a great place for new retail, what with the freeway access, and the city sure could use the increased sales tax revenues.

The coalition concerned about eminent domain abuse is a broad one, extending across the political spectrum. This outcome will disappoint conservatives who believe in limited government, strict construction of the constitution, and the sanctity of private property. This outcome will disappoint liberals who hate to see government use its power on behalf of big business to pick on the little guy.

To my liberal friends who are disappointed in this result: Please note that the Court's four strict constructionists dissented in this case. The five justices who voted to uphold a city's right to practice crony capitalism:

John Paul Stevens -- appointed by Gerald Ford, a liberal on social issues.

Stephen Breyer -- appointed by Bill Clinton, a liberal on social issues.

Ruth Bader Ginsberg -- appointed by Bill Clinton, a liberal on social issues.

Anthony Kennedy -- appointed by Ronald Reagan after Robert Bork was rejected by the U. S. Senate for being a strict constructionist. Reagan settled on someone with a mushy moderate reputation as the best he could do with a majority of Democrats in the Senate. (If Robert Bork were on the Court instead of Anthony Kennedy, the outcome today would have been very different.)

David Souter -- the stealth justice appointed by George H. W. Bush. Souter's views on contentious issues were unknown, and the Bush administration wanted a nominee with no "paper trail" that could be used by Senate Democrats to "bork" him. Now we know that if there had been a paper trail, Senate Democrats would have embraced Souter enthusiastically.

So we have three justices appointed by social liberals, and two justices appointed at a time when social liberals controlled the confirmation process in the U. S. Senate.

These five justices have discovered previously unknown "rights" in the Constitution, such as the right to sexual expression. Sometimes they ignore the Constitution entirely and find the material for their rulings in European law. For a group so quick to see things that aren't there in the Constitution, it's strange that they can't see a limitation on the power of government that clearly is there.

To my liberal friends: Having a Supreme Court majority willing to interpret the Constitution creatively has gotten you some changes you wanted, changes you would have waited a long time to achieve through the legislative process, but your victories have come at a price. That same Supreme Court majority is unwilling to uphold the plain meaning of the Constitution when it limits government power.

I understand why liberals dislike strict construction, because it means that the societal advances liberals seek will take an excruciatingly long time to accomplish, as they try persuade a majority of the public to support their views, but our liberties are most secure when the Constitution is honored as it was written. Using the Supreme Court to blaze a shortcut by legislating from the bench is tempting, but dangerous.

I'm reminded of something from the play "A Man for All Seasons":

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

You don't like the laws -- use the legislative process to change them. You don't like the Constitution -- there's a process to amend it. It's not easy, but it isn't supposed to be easy. Can't we all, left and right, agree that, if making change easy means putting every liberty at risk, it isn't worth it? We need judges who understand that, too.

I hope my liberal friends will keep that in mind when the next Supreme Court appointment is before the Senate.

UPDATE: Michelle Malkin has a round-up of opinion and analysis on the decision.

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6 Comments

W. said:

I'm not at all happy about the decision, but fact remains that three of the five in the majority were Republican appointees. As often in the case of the GOP, corporate interests trump property rights. So much for "conservative" judges.

And frankly, trying to predict the court's direction is always a dicey proposition.

And there were two reasons Bork didn't pass muster for the Supreme Court: He used such smokescreen language during his hearings that few could figure out what he stood for. When several of his stances actually became clear, they were extreme even for some Republicans.

The other reason Bork wasn't confirmed was because he became a moral coward during Watergate. Special prosecutor Archibald Cox was ordered fired by President Nixon, and the attorney general and assistant attorney general resigned in protest rather than follow the order. Bork agreed to follow the order to fire Cox. Bork basically helped Nixon abuse his presidential power, helped put the country in a constitutional crisis, and was a key player in the "Saturday Night Massacre." If I were a senator, I would have voted him down for that reason alone. The court needs men of character, and he abundantly proved that his was compromised.

Roy said:

Since '78 I have said that Roe will collide with OASDI. For the last 15 yrs I have thought that collison will occur 2015 to 2030, and will shape the rest of America's 21st C.

Kelo will enable gov't attempts to avoid the wreckage from that collision. And make the wreck worse.

Inflation will not keep up with population graying. Graying means reduced tax base. Gov't will try to avoid falling tax revenues by favoring schemes per Kelo. Not only will those schemes take castles from men who thought they were free in their own homes. Those schemes will not be able to overcome graying.

Stevens, Kennedy, and Souter may have been appointed by Republicans, but they have not been conservative justices. Bork's judicial philosophy was very well-known, which was why he was an easy target for the left. (That and the curly hair and funny little beard.) The political climate in 1987 would not have permitted a principled strict constructionist -- however angelic -- to be get Senate approval for a place on the Supreme Court. Today you could get a majority for such a nominee, but the filibuster factor complicates matters.

W. said:

Which brings up an interesting question: Should you nominate a strict constructionist when the original framers intended the Constitution to be a document that is mallable, not rigid?

It's true that on occasion that Stevens, Kennedy and Souter have not acted as conservative judges (although I see their decisions as a mixed bag). However, when you appoint a justice, there's a chance that his/her ideals will evolve and change when they assume that lofty position. The Supreme Court is a the highest court in the land, if not the world. Donning those robes have a tendency to humble a person and make their decisions more thoughtful and deliberate.

This doesn't mean I agree with the decision. But I don't think eminent domain should be eliminated entirely, either. I'm disappointed the court couldn't/wouldn't find a compromise.

Roy said:

OASDI = Old Age, Survivors, and Disability Insurance (commonly called social security)

Sorry I did not get back with the answer right away. Didn't even look at the computer for a couple days.

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This page contains a single entry by Michael Bates published on June 23, 2005 11:34 AM.

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