Thursday, July 14, 2005

New Republic Disappoints

The New Republic is often characterized as a more moderate liberal voice so it was disappointing to read their editorial defending Kelo in the latest issue of the magazine. Arguing that the principle of judicial restraint was admirably expressed in the Kelo decision the editors applaud the court’s refusal “to second-guess the economic judgments of city and state legislatures.”

So according to the New Republic, judicial restraint is to be applauded when the highest court fails to uphold the constitutionally protected property rights of Americans but judicial activism is affirmed when, as it did in Roe v. Wade, the court finds a privacy right that is explicitly expressed nowhere in the Constitution.

Stranger still is the slippery slope argument that foresees a “torrent of judicial activism” if the Court had acted differently, one that “might have called into question everything from local zoning ordinances to environmental laws.”

Political Response Most Appropriate

The New Republic believes that the appropriate response in unfair eminent domain cases is political and not judicial. It cites the Homes, Small Businesses and Private Property Act of 2005, introduced in the Senate by Texas Senator John Cornyn, as the right approach to this issue. The money quote:

A bill like this might help to discourage eminent domain abuse--that is, condemnation of private homes for private profit--without asking judges to second-guess the economic decisions of legislators, a task for which they are notoriously ill-equipped.

We could also argue that the same principle – developing a political approach and consensus – could as equally be applied to abortion rights. On what basis does the New Republic make decisions about what constitutes legitimate judicial activism? Our opinion is that the violation of basic constitutional rights is not something that can be cleverly elided from a discussion of judicial philosophy without undermining the core responsibility of this country’s highest court.