Political Science

The United State Supreme Courts divided opinion in Kelo v. City of New London, issued by a mere 5-4 majority, clearly illustrates the relevance and the significance of judicial models of philosophy.  This relevance extends beyond the hallowed halls of the legal profession because these cases affect the public, the very structure of America, and the core meaning to be attributed to the United States Constitution.  In Kelo, for instance, the method of judicial interpretation resulted in what both the public and many conservative legal commentators have characterized as a dangerous and overly expansive interpretation of the Takings Clause of the American Constitution.  Two legal scholars, noting the public opinion implications of the decision, noted that the public reaction to this decision was anything but mundane and tranquil. Instead, the reaction was more like an explosion of outrage HYPERLINK httpwww.questiaschool.comPM.qstaod5031567274(Woodyard  Boggs, 2009, p. 431).  Justice OConnor, who wrote one of the dissenting opinions, argued that  Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner (OConnor, 2005).  The fundamental debate, and the cause of the outrage by both the public and the legal community, is whether judges should be limited to the language of the constitution and related legal precedent or whether they should be allowed to superimpose their own personal and political preferences.

Activist judges tend to rely on a rather vague notion sometimes called the spirit of the Constitution and this allows them to generate legal interpretations sometimes at odds with the literal wording of a statute or the constitution.  The danger is that if this type of activism becomes established that the constitution will mean not what it says but what judges want to it to say.  This offers the additional possibility the constitution will fade away into oblivion and instead be replaced with a body of case law that does not accurately resemble the principles of the countrys founding.  Kelo is an excellent example of this debate, and the dangers, because the majority interpreted the public use language expansively in a manner that essentially allowed a private developer to seize private property the proxy of a local government.  The Constitution, it is fairly fair to argue, never intended a private developer to be able to seize private property and this is what the majority allowed.  The majority, in effect, created an incentive for private developers to make campaign contributions in order to grease the wheels for persuading local politicians to invoke the eminent domain power in order to seize the homes and other private property of families and individuals.  In order to reach this decision, the majority actively stretched the meaning of public use in order to thereby find that private development would benefit the public this is an extraordinarily attenuated interpretation of public use and the local government in many ways can not function as a straw man in furtherance of the aims of private development companies and other commercial interests.

There are democratic procedures for amending the constitution and changes to restrictions such as public use ought to be pursued and implemented through these legal mechanisms rather than through the musings and the fancies of activist judges.  This decision, and particularly the attenuated reasoning, are insulting to the constitution and the legal profession more frightening, this type f activism is a threat to the protections that the constitution was designed to afford the American people.