The Shame of Kelo

The 2005 Supreme Court decision Kelo vs. New London broadened municipalities' power to condemn property. Previously the takings clause had been used primarily to convert underused private property for some public use. Kelo allowed the city to give the property to another private developer, on the theory that this would generate tax revenue for the city.

It's now six years later. How much tax revenue has been generated? You might guess the answer: zero. But it gets worse:

Now, we learn from the local newspaper, The Day, that following the hurricane Irene, the city has designated the Fort Trumbull redevelopment site as a place to dump vegetation debris.

Hopefully this is just a temporary situation. Nonetheless, the fact that the site was originally condemned in 2000, the path cleared for development in 2005, and is now being used as a temporary dump is pretty clear evidence that the purported benefits from this taking will not be soon in coming.

The White House's Incoherence on Health Care

From the White House blog today:

Those who claim that the “individual responsibility” provision exceeds Congress’ power to regulate interstate commerce because it penalizes “inactivity” are simply wrong. Individuals who choose to go without health insurance are actively making an economic decision that affects all of us.

I hope it's clear to them what a dangerous precedent this would create. If doing nothing can be construed as an economic act that affects all of us, then what can't be? For example, once I've been forced to buy my health care, then literally doing nothing can be hazardous to my health. This potentially raises my future health care costs, and when those costs are shared by all, it affects everyone. Therefore, according to the White House's logic, it would be perfectly Constitutional to fine me for not exercising.

Of course, many liberals may well believe this. Nancy Pelosi expressed shocked disbelief at the notion that the PPACA's health insurance mandate might be unconstitutional. When Elena Kagan was asked during confirmation hearings whether a law requiring people to eat vegetables would be unconstitutional, she evaded the question.

Simply put, the left does not believe the Constitution is a "living document". They believe it is an irrelevant one. Only when the Constitution happens to coincide with one of their sacred cows do they recognize it; whenever it poses the slightest barrier, it is met with utter disdain.

That Living Constitution

I had a discussion earlier in the week with a liberal (he would prefer me to say "progressive") friend of mine who was astonished at my declaration that the left was responsible for judicial activism in the Supreme Court. Surely, he said, the left would merely say the same thing about the right. This was a phenomenon that was universal, and that both sides practiced in an effort to subvert the other, nothing but further evidence that the Court has become politicized.

He's right: the left would say the same thing. But they'd be wrong. Judicial activism - by which I mean judges writing decisions using their own preferences rather than their interpretation of the Constitution - stems from Progressive impatience with Constitutional restraint. We can go over the whole history of this another time, but a Corner post by John Derbyshire really gets to the root of it.

A reader writes to Derb:

let me relate the story to you of Justice Ruth Bader Ginsburg’s visit to my alma mater. (For the record, I was not in attendance at her lecture, but I heard the same story from multiple trusted colleagues). A student asked Justice Ginsburg about the use of the "intermediate scrutiny" test for equal protection review. Intermediate scrutiny is the standard by which courts review challenges to government classifications based on gender. (The court uses "rational basis" review for what it calls "non-suspect" classifications, such as wealth, which is a relatively easy test for the government to pass, and a "strict scrutiny" test for "suspect classifications," such as race, which is a much harder standard for the government to clear). The basis of the question was Justice Ginsburg’s majority opinion in US v. Virginia (the case that forced Virginia Military Institute to become a co-ed institution), in which she applied a version of intermediate scrutiny that had never been applied before and which seemed to many observers much more like a strict scrutiny review (in other words, she held the government to a higher standard than precedent seemed to dictate). The student wanted to know how Justice Ginsburg arrived at the use of this "revised" standard.

Her answer astonishes me to this day. She told those assembled that the justices do not use the analytical framework to reach the results in a given case, but that they decide the result first and then fit the opinion into the existing framework.

(Emphasis mine.)

This is a stunning admission. I do not believe you would hear anything like it from any originalist on the Court.

Economist v. Tea Party

The Economist (in the person of its America-desk essayist, Lexington) casts a baleful glance at the Tea Party's reverence for the Constitution.

WOULDN’T it be splendid if the solutions to America’s problems could be written down in a slim book no bigger than a passport that you could slip into your breast pocket? That, more or less, is the big idea of the tea-party movement, the grassroots mutiny against big government that has mounted an internal takeover of the Republican Party and changed the face of American politics.

There is something to this, of course. But Lexington gets a few things wrong, too:

...[T]here is something infantile in the belief of the constitution-worshippers that the complex political arguments of today can be settled by simple fidelity to a document written in the 18th century.

This is simply a straw man, nothing more. Of course the Constitution doesn't contain the answers to all our problems. The point the Tea Partiers are making is twofold: first, that the Constitution is the ultimate law of the land, a meta-law, so to speak, that forms the skeleton from which all our other laws and governmental institutions draw their authority, and that that framework has been increasingly ignored over the past century; second, that returning to Constitutional principles would help restrain or even roll back encroaching government, in particular federal, control over our lives.

Lexington points out that the solution to the question of whether gays should marry is not contained in the Constitution, as if this is some indictment of it, or reason we should ignore the document. The Constitution is not meant to answer such questions, of course. It is meant to give us a framework within which we answer them. So when the judicial branch arrogates legislative power to itself, as it has in this and many other modern controversies, Constitutionalists are likely to object. It isn't that the answer is necessarily objectionable (although that is often also the case), but that the way in which it was determined was illegal and weakens the framework in the future.

But it isn't only Lexington's legal/philosophical analysis that is awry. The historical analysis also comes up short.

[The Tea Partiers] say that the framers’ aim was to check the central government and protect the rights of the states. In fact the constitution of 1787 set out to do the opposite: to bolster the centre and weaken the power the states had briefly enjoyed under the new republic’s Articles of Confederation of 1777.

The Constitution of 1787 certainly had the effect of bolstering the executive, but it is also designed to balance the powers: state against federal, legislative against judicial against executive. It's certainly true that Madison and his compatriots had states' rights firmly in mind when crafting the document, and the Tea Partiers are absolutely accurate to argue that a primary reason states have lost so much power is because of unConstitutional abuses.

Finally, Lexington argues that, since we can't know what the founders would have thought of the modern welfare state, or recognized its institutions, we have no choice but to ignore their document. This is disingenuous at best. One reason we have the country we have, one reason it became so unrecognizable to the founders in the first place, is because of Progressive steamrollering of the founding documents. It's perfectly fair to see a restoration of respect for the Constitution as one way to roll back some of those changes.

The modern progeny of the Progressive movement have zero respect for the Constitution. They see it as no impediment at all to the furtherance of government control of our lives, and there are any number of videos showing Nancy Pelosi, Barney Frank, and other Democratic bigwigs baldly asserting as much. Conservatives are not revolutionaries at heart; turning back the clock on a century of Progressive changes (some of which, especially in the field of civil rights, we should keep) is too massive a movement to undertake overnight, and is politically impossible anyway. But to roll back a few things (Obamacare being target number one), to restore a sense that there is resistance to the growth of government: these are practical goals that the Tea Party can achieve. Raising the stature of the Constitution in the minds of the public can only help them do it.