Monday, July 04, 2005

Epstein, Kelo, & The Role of the Judiciary

Richard Epstein on the Court's recent takings opinion:
The court could arrive at its shameful Kelo ruling only by refusing to look closely at past precedent and constitutional logic. Courts that refuse to see no evil and hear no evil are blind to the endemic risk of factional politics at all levels of government. And being blind, this bare Supreme Court majority has sustained a scandalous and cruel act for no public purpose at all.
I think the Kelo opinion illustrates in an important way that the Supreme Court in particular, and the Judiciary more generally, has often failed to carry out it's proper Constitutional role in our system of political economy. Both the Legislative and Executive Branches of government respond to the "will of the majority." This is their natural tendency. Neither the Legislature, nor the Executive, branch of government really sees incentives to protect the liberty of the individual. The Judicial branch of government is the one branch of government that has any reason to protect the liberty of the individual, and this is largely because our Constitution was written with the protection of individual liberty in mind. But, when the Supreme Court turns from it's role as protector of individual liberty in order to defer to the "will of the majority," the Supreme Court allows our system of political economy to be characterized by tyranny of the majority.

I suggest that it should matter not one little bit what government says the "public purpose" of its action is. The legislative branch, as well the exective branch, will always say that it acts in the public interest, and for legitimate public purpose, and to great public benefit. It will say so, both when this is true, and when the point of government's action is quite clearly to take from Mutt to give to Jeff. The government should never be allowed to take property from Mutt to transfer it to Jeff, no matter the excuse offered by government, simply because that property belongs to Mutt, not to Jeff and not to government. It should matter not, whether it is the will of the majority. It is Mutt's property. It is not the majority's. It is the role of the Judicial branch of government to protect individual liberty from the will of the majority. In Kelo the Supreme Court failed in its Constitutional role in our system of political economy.

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