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.
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