Justice O'Connor's Finest Hour

Justice O'Connor's Finest Hour
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Stephen Crampton, Esq.
Those bells you hear ringing all over America are the sounds of jubilation overflowing from conservatives anticipating the appointment of a constitutionalist as Justice Sandra Day O'Connor's replacement.  Justice O'Connor, who announced her retirement on July 1, will serve until her successor takes office, but the next term of court does not begin until October 1, so it is unlikely Justice O'Connor will hear any more cases.
Justice O'Connor's role as the "swing vote" in so many controversial decisions, from abortion to Nativity displays to states' rights cases to the Ten Commandments cases, made her opinion count in many respects more than those of the other Justices.  All too often, those of us who read the Constitution as a legal document the meaning of which does not change with the times have been disappointed with decisions reflecting the "living Constitution" theory (or, as my colleague Mike DePrimo recently dubbed it, the "silly putty" theory of constitutional interpretation), and Justice O'Connor has frequently joined the majority in those cases. 
For all her shortcomings, however, Justice O'Connor stood tall in the recently decided eminent domain case, Kelo v. City of New London, Connecticut.  In time, her dissent may become known as her finest hour on the High Court. 
Kelo was decided by yet another narrow, 5-4 split.  The majority, led by ultra-liberal Justice Stevens, held that the City was within constitutional bounds to take the private residences of Ms. Kelo and the other plaintiffs and sell it to another private entity, the Pfizer pharmaceutical empire, for the sole "public" purpose of furthering economic development.  After all, the Court reasoned, the City had been economically depressed for years, and needed the jobs.
Not that it matters much to the majority, who believe in the "living Constitution" (they cited to the actual text of the Fifth Amendment only once, and then only in a footnote), but the Fifth Amendment text limits the taking of private property to those dedicated to "public use."  Public use, as the phrase logically suggests, usually means public use, such as roads, utility lines, or a park, where the public may freely roam.  The majority, however, gave us a new meaning.  Their basic logic was that "public use" = "public purpose," and economic development = a public purpose.  In a nutshell, according to the Court, public use can mean almost anything the legislature says it means.
The majority's sudden urge to defer to the judgment of the legislature may be excused as temporary insanity.  It was long gone within a matter of three days, when the same Justices (with a single exception) bulldozed over legislative determinations in the Ten Commandments cases.  Deferral to legislative judgment, it seems, is something the Justices do only when it furthers their purposes.
Justice O'Connor dissented, joined by Chief Justice Rehnquist and Justices Scalia and Thomas.  She immediately cut to the quick: "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process."
The majority, Justice O'Connor noted, has effectively deleted the requirement of "public use" from the Constitution. 
Talk about a living document!  Public use has now become private use.  This should not be so surprising, I suppose, given that the right to bear arms has become a prohibition on bearing arms, and the right to life has become the right to kill unborn children at any stage of gestation.  Who knows?  Over time, perhaps the Constitution will one day be understood to deny Congress the power to lay and collect taxes, allow us to refuse certain states (I suggest Massachusetts first) the right of suffrage in the Senate, and even require the establishment of a national religion.  We seem to have  gone through the looking glass; up is down and down is up.
For Justice O'Connor, though, the  document might conceivably just mean what it says.  "When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, that no word was unnecessarily used, or needlessly added."  She went on to posit that in order to interpret the meaning of the Constitution under this bold, never-before-attempted theory, "we have to read the Fifth Amendment's language!" What heresy!  How dare a sitting Supreme Court Justice suggest that antiquated textual limitations might actually restrict their all-knowing, Solomonic pronouncements!
No wonder she retired B with clear thinking like this, Justice O'Connor was surely persona non grata with the Frankensteinian majority and their monster-making ways.  Her continued presence on the Court would only hinder their grand social experimentation.
Justice O'Connor cited Alexander Hamilton for the proposition that "the security of property, was one of the great objects of government." This truism has been all but forgotten in this day of rampant socialism and governmental meddling in the lives of private citizens.  But Justice O'Connor's not-so-gentle reminder has struck a chord with grassroots <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />America, who have expressed greater outrage at this latest excess of the High Court than any decision in recent memory. 
As we celebrate the 229th year of our nation's independence, it is fitting that we heed Justice O'Connor's opinion, and reexamine the purpose of government and the true meaning of liberty.  John Adams, like Alexander Hamilton and virtually all of our Founders, held private property among our most precious possessions.  "Property must be secured or liberty cannot exist," he counseled. 
In the aftermath of Kelo, private property is no longer secure.  Let's make Justice O'Connor's finest hour one of our own, and ensure that the next Supreme Court Justice will read and abide by the actual text of the Constitution.  Maybe we can help to secure the blessings of liberty to our own posterity. Mr. Crampton serves as Chief Counsel of the American Family Association Center for Law & Policy (CLP), a public interest-type law firm. The CLP's web site is www.afa.net/clp. Mr. Crampton's daily radio show, "We Hold These Truths," can be heard on almost 200 radio stations nationwide. He can be reached at clp@afa.net.

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