Thomas Sowell

While President Barack Obama has, in one sense, tipped his hand by saying that he wants judges with "empathy" for certain groups, he has in a more fundamental sense concealed the real goal -- getting judges who will ratify an ever-expanding scope of the power of the federal government and an ever-declining restraint by the Constitution of the United States.

This is consistent with everything else that Obama has done in office and is consistent with his decades-long track record of alliances with people who reject the fundamentals of American society.

Judicial expansion of federal power is not really new, even if the audacity with which that goal is being pursued may be unique. For more than a century, believers in bigger government have also been believers in having judges "interpret" the restraints of the Constitution out of existence.

They called this "a living Constitution." But it has in fact been a dying Constitution, as its restraining provisions have been interpreted to mean less and less, so that the federal government can do more and more.

For example, the Constitution allows private property to be taken for "public use"-- perhaps building a reservoir or a highway -- if "just compensation" was paid. But that power was expanded by the Supreme Court in 2005 when it "interpreted" this to mean that private property could be taken for a "public purpose," which could include almost anything for which politicians could come up with the right rhetoric.

As for "just compensation," that is often about as just as "separate but equal" was equal. As for "empathy" for the less fortunate, it is precisely lower income and minority neighborhoods that are disproportionately bulldozed to make way for upscale shopping and entertainment centers that will bring in more taxes for politicians to spend to get themselves re-elected.

This process of "interpreting" the Constitution (or legislation) to mean pretty much whatever you want it to mean, no matter how plainly the words say something else, has been called judicial activism. But, as a result of widespread objections to this, that problem has been solved by redefining "judicial activism" to mean something different.

By the new definition, a judge who declares legislation that exceeds the authority of the legislature unconstitutional is called a "judicial activist."


Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

Creators Syndicate