Tuesday, May 23, 2006

Unconstitutional Supreme Court?

"JunkYardLawDog: Yes, indeed courts can act unconstitutionally in their rulings. One virtue of originalism is that it provides a benchmark external to case law by which to judge judicial behavior. As the first sentence of Restoring the Lost Constitution states, 'Had judges done their job, this book would not need to be written.' Allowing precedent to trump original meaning (where that meaning is clear), which is supported by all ideological stripes when it is convenient, actually puts the rulings of judges above that of the Constitution."
I think this is an important point. I have heard and read others who do seem to think the Supreme Court cannot make unconstitutional rulings, because "the constitution means what the Court says it means." If that is a person's view, then indeed it must be clear that the Court cannot amend the Constitution or act unconstitutionally. In my view, the Court can, and has done both. In my view, when the Court decided to read the Takings Clause as "public purpose" instead of "public use" we have just one clear illustration that it has done both.

I also had not thought of the point Barnett makes about precedent, but it seems correct.

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