The World According to Nick
My take on Software, Technology, Politics, and anything else I feel like talking about.
Sunday, July 31, 2005

Some Revolutions Aren't Supposed To Be Legislated 

The Volokh Conspiracy points to this piece by Jonathan Rauch on what he thinks won't happen to the Supreme Court with John Roberts. Overall its a well written piece. However, he starts out by saying this, which bugs the hell out of me every time I read something like it:

IN JUNE, conservatives howled when the Supreme Court upheld the right of New London, Conn., to condemn an entire neighborhood in order to make room for private development. House Republicans, in particular, took turns denouncing the Court's decision in Kelo v. New London. Among them was Rep. Virginia Foxx, R-N.C. In her monthly column on, she called the ramifications of the ruling "truly horrifying" and declared, "The Supreme Court seems to be claiming that the government can confiscate private property for nongovernmental use, at will, under the veil of eminent domain." Her conclusion: "The Supreme Court must be held in check."

There it went again, that activist Court, trampling on the democratic process, legislating from the bench. Except that it had done no such thing. In the New London case, the Court pointedly deferred to the political branches of government, ruling that it had no business second-guessing Connecticut's elected officials. Conservative property-rights advocates were upset, it appeared, because the Court did not legislate from the bench.

Things written specifically into the Constitution aren't supposed to be legislated! That's the point! The fact that they are in there means that we think it to be so important, that passing a law is not enough to change it. The 50% whim of a few legislators (or councilmen) is not enough. Mr. Rauch seems to be suggesting that its alright to change the meaning of items in the Constitution with a simple 50%. Wrong. That's why we have an amendment process. It's not just there to add stuff, it's there to change things we don't like. Now then... as it turns out the Supreme Court has been doing just as poor of a job as the legislatures in protecting the words and meaning of the Constitution. But that's the process we have.

Need an example? Remember back in the early 90's when the Republican Congress passed a Line Item Veto? Ironically, they were giving it to Clinton, but it was struck down by the Supreme Court. Why? The reasoning was that the veto power is defined in the Constitution, and therefore any changes to it have to be passed through a Constitutional amendment. They were absolutely right. That's how the system works, let's not forget that.


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Name: Nick
Home: Wauwatosa, WI, United States

I'm a Software Consultant in the Milwaukee area. Among various geeky pursuits, I'm also an amateur triathlete, and enjoy rock climbing. I also like to think I'm a political pundit.

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