- The first amendment reads in part: "Congress shall make no law . . . abridging the freedom of speech, or of the press." But SCOTUS upheld McCain-Feingold, which is precisely and by definition an abridgment of political speech and press.
- The 5th amendment reads in part: ". . .nor shall any person . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." As of today, SCOTUS declares that any person may be deprived of property with compensation as the gov. sees fit for any dang reason the government chooses.
The examples of court excess are numerous of course,, but I single these out because here we have cases where the Court's decisions are diametrically opposed to explicit language in the Bill of Rights. Note to social conservatives: will you finally see the folly of trying to protect the culture through amendments to the Constitution? It won't work because even if you manage against all odds to pass the amendment, your amendment will only mean what 5 members of the court SAY it means. If they say "Marriage in the U.S. shall be between a man and a woman" means that a man can marry a man who feels like a woman inside (psychological "health" being, thanks to Doe v. Bolton, already a catch-all term), that's what it will mean. If Kelo teaches us anything, it is that the Court has given up even the pretense that it gives a fig what the Constitution says.
Only two things will help. Good judges (& RC2 is in no mood to hear Bill Kristol's gossip about the Prez offering us Alberto Gonzalez). And chief executives and legislatures who understand that they are co-equal branches of the government, not subservient to the courts.
We have two examples in history of the two other branches putting the Court in its place. There was Lincoln refusing to enforce Dred Scott. (He argued that the decision was binding only on Dred Scott himself, but did not set precedent, and he sent word to federal marshalls not to enforce the new "law"). And we have the example of Roosevelt & Congress pushing through the New Deal. Congress did its part by continuing to pass legislation it wanted even after the Court had continually struck similar legislation down, until public outcry began to turn in favor of Roosevelt's court-packing plan. Then the Court "magically" found reason to find the New Deal legislation acceptable.
This is not my coming-out party as a New Deal flak; I am simply saying that the New Deal represents a good political model for the proper use of executive and legislative power against judicial supremacy. Until Congress & The President grow spines and challenge the Court's power, there is no law that can be passed which is powerful enough to overcome Justice Kennedy's private opinion on any subject.
Read Roosevelt's fireside chat on court-packing and see if you don't see history repeating itself, especially towards the end when he discusses in several paragraphs the problem with constitutional amendment as a way to solve anything. Read the whole thing, please, but the money quote is: "Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of justices who would be sitting on the Supreme Court bench. For an amendment, like the rest of the Constitution, is what the justices say it is rather than what its framers or you might hope it is."
UPDATE: Click on "Shaky Ground" for an artistic rendering of the Kelo decision. While you're at it, check out "Apology Accepted" and "Sitting Down on the Job." Plus ninme links to various comments on the decision --including the funny one addressed to Leftists: "While you were out protesting the Patriot Act, the government took your house."
