This week, the Supreme Court of the United States once again proved that it is a feckless, dictatorial and altogether ridiculous body. Its latest spate of decisions reveals legislative usurpation, disingenuous deference and silly inconsistency. But, of course, what else should we expect from the court that tells us our Constitution protects pornography but not political advertising, sodomy but not the Ten Commandments, and mentally disabled murderers but not private property?
For those disinterested enough not to gasp in horror at each new judicial outrage, it is fascinating to watch as the Supreme Court gradually turns the Constitution on its head. The principle of judicial review is absolutely simple: It is the job of the judiciary to look at the words of the Constitution and to strike down laws that are not in concert with those words. Where laws do not contradict principles espoused in the Constitution, the judiciary must defer to the legislatures. That's all there is to judicial review. All other theories of constitutional law constitute thinly-veiled judicial usurpation.
And yet this simple, elegant, truthful and historically honest version of constitutional jurisprudence has been all but abandoned by the Supreme Court since its ascension to power in Marbury v. Madison (1803). Instead, the judiciary has become a third political branch, trumping the other two in its own pursuit of power.
"Deference" to legislatures now only occurs when the Constitution would clearly prohibit such deference. Last week, the Supreme Court decided that the Fifth Amendment guarantee, "nor shall private property be taken for public use, without just compensation," no longer applies in our modern world. In Kelo v. New London, the court stated that property owners could be deprived of their property, and that that property could be handed over to private developers, as long as such a handover would create a "public benefit." Now, the Constitution says the words "public use," not "public benefit." There's a very simple reason for that: The founders were protecting the government's ability to buy property for eminent domain purposes. Such purposes included highways, commons and similar projects. If property could be taken for "public benefit" instead of "public use," an elected legislature could force you to sell your home to me, as long as I promise to build a hotel on the land, thereby raising tax revenues and providing a "public benefit." Kelo guts the "private property" guarantee of the Fifth Amendment.
Meanwhile, the constitutionally guaranteed right of the people to create law through their elected state legislatures has been usurped in the name of non-constitutional principles advocated by the politicians on the court. On June 27, the Supreme Court decided that a display of the Ten Commandments could not be placed inside two Kentucky courthouses. Justice David Souter, perhaps the worst judicial appointment of the last 30 years, delivered the majority opinion. "[T]he original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction. When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable," Souter wrote. This is pure silliness. The idea that the founders would have objected to a public display of the admonition "I am the Lord thy God" is a disgrace to their memory.
On the exact same date, the Supreme Court decided that a Ten Commandments monument in the Texas Capitol did not violate the First Amendment establishment clause. Justice Rehnquist wrote the majority opinion, stating, "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause." This statement, unlike Souter's, is undeniably grounded in the original understanding of the First Amendment.
The inconsistency here is astonishing. The court could hardly have been more high-handed and light-headed in distinguishing the two cases. As Justice Scalia stated in dissent in the Kentucky case, "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle." The Supreme Court's absolute arbitrariness in these cases is merely a manifestation of its unquestioned power. Tyrants can afford to be arbitrary; republican politicians cannot. Yesterday's oligarchs maintained power with an iron fist; today's oligarchs maintain power by pretending that they are protecting the people from themselves.