Thank you for bringing this up. It is something that clearly confuses a lot of people who almost seem to think that, just because government is restrained from prohibiting abortion, e.g., people will have to have abortions.
OTOH, regarding "A decision that a statute or act of a governmental authority is unconstitutional, is a restriction of power, not an extension of it":
people also forget that the converse is not necessarily true. For example, in the Kelo case, the Supreme Court did not grant the state/local governments an extension of powers -- they just refused to restrict the powers of state and local governments. Indeed, normally when the federal government does restrict powers such as ought to have been restricted by the Kelo ruling, it is Republicans who are up in arms about "States' rights" (i.e. to exercize power -- as you point out, contrary to the myth of liberal judges exercizing power, they are actually trying to restrict the states from exercizing power) while the Democrats are supporting the restriction of power (indeed, a Democratic Congressional response to the Kelo ruling would have been an excellent opportunity for our side to demonstrate that our "activism" is indeed about ensuring "everyday" people's rights are respected -- but we were too slow and the Republicans beat us to the punch!). The reason for the odd reversal in Kelo can only be guessed at -- but presumably, the conservative justices wanted to lay down a precident that could be used against environmentally based restrictions on property rights whereas the liberal justices wanted the states and local governments to be able to maintain those powers. Of course, the liberals could have written a ruling that was much more narrow and ruled against New London anyways, but then they would not have gotten a majority as the conservatives would have, if they couldn't rule in such a way as to restrict environmental regulations would have ruled for state's rights in such a way as to restrict state environmental regulations -- so the liberals, knowing they had a choice between ruling for New London and having a majority ruling not restricting state and local powers, including to make environmental regulations or ruling for Kelo and getting nothing, chose (in a politically stupid manner remaniscent of the politically stupid compromise positions some in the DLC want the Democratic party to continue taking: haven't these people heard the Ricky Nelson song "Garden Party"?) to have a partial (and pyrrhic) victory.
Of course, just because the SCOTUS says a state or locality can make a law, doesn't mean they should. People forget that too -- if people are mad at the Kelo decision, they should either begin to think that maybe "liberal judicial activism" does have a place in even the most conservative hearts or that maybe they should start looking at what's on their state and local law books and trying to change them instead.
The wailing about Kelo in the hearings was precisely what I had in mind (but forgot the name of the case. Thanks!).
That one has prompted calls to limit the jurisdiction of the court, at least according to the Senator from Oklahoma. Which is absurd on its face, and reflects a complete ignorance of the holding in the Kelo case.
Damned activist judges.
Thanks! - Rmj, Wandering Aengus
You're welcome.
The Republicans (presumably on purpose) misunderstood the Kelo ruling -- it followed standard "states' rights" principles. If the liberal judges would have written a more narrow opinion that limitted states' rights (while still preserving environmental reasons as valid cause for eminant domain), presumably the conservative justices would not have been "activists" in asserting federal authority to regulate the state/local right to exercize emanant domain (although they then could have likely managed to throw something into their opinion allowing the courts to step in precisely when the environment was the issue) -- and the majority then would have swung conservative rather than liberal as the swing vote (IIRC O'Connor) was presumably made based on which side was the least "activist" and most respectful of "states' rights".
This would have been the best political outcome even if it meant a total, rather than partial, loss for liberal ideals in the case -- as it would have made clear the necessity for liberal judicial activism even to protect the rights of the landed middle classes rather than muddying up the issue by making it seem like liberal justices stepped into the way to have property siezed (rather than ruling in favor of states' rights, which is what they actually did). Considering that the Kelo v. New London ruling seemed to be rather political in the first place, you would think the liberal justices would have had a better ear for what would happen (at least it should have been the Dems on top of the Congressional "response" ... not the Republicans) -- it may have been better to craft a proper ruling and have the majority ruling be completely bad (from the liberal point of view), than to compromise and have a ruling that pleases no-one and makes liberals look bad.
Of course "justices are not supposed to be politicians", but what is odd to me is how this pattern is so similar to the way in which Democratic politicians shoot the party in the foot on a regular basis: rather than sticking to principles even if it means loosing, a compromise is reached, but the compromise, while allowing some principles to actually be enacted (more success in some sense than if we stuck to our guns and lost 100%), seems so bad (even if it isn't) that it makes the whole party look bad for having members propose the compromise -- it also makes us look unprincipled.
Many on the right point to Kelo as exactly what is wrong with the Democrats -- they are right about this, but not for the reasons they say. Kelo was not an "activist" decision ... Kelo was exactly the sort of compromise that makes us Dems. look worse rather than better -- exactly the sort of thing in which, e.g., Joe Lieberman specializes that causes Lexington in the Economist to lust after him while causing everyone else to view the Democrats as a bunch of unprincipled, spineless wimps wh
[rant continued]
wimps who are, because Lieberman's compromises only serve to place in relief our partisan bomb throwers, nonetheless overly partisan.
In the comments to another post of yours, I asked the question whether individual rights as stated in the Constitution and the Bill of Rights take precedence over executive powers. This answers my question in favor of the rights of individuals, correct?
This answers my question in favor of the rights of individuals, correct?
Yup.
The whole reason habeas corpus is so fundamental.
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