US supreme court decisions show the law is an ass


Opinon/Mark Steyn: Nancy Pelosi's job is leading the Democratic Party in the House of Representatives. They should have asked for references. Here's her reaction to the supreme court's recent and controversial decision on property rights: "It is a decision of the supreme court," said the minority leader. "So this is almost as if God has spoken."

Good to know a San Francisco Democrat believes in the word of God.

As it turned out, a day or two later God handed in her notice. On Friday Sandra Day O'Connor announced she was stepping down from the bench. On a supreme court divided otherwise evenly between a four-man "conservative" and a four-man "liberal" bloc, Sandra was the ne plus ultra of swing voters, the fifth vote on over a decade's worth of big 5-4 decisions.

George Bush may be, in media shorthand, "the most powerful man in the world", but Swinging Sandra was the most powerful woman in America, and that's what counts. She came to embody the court's perceived if largely self-invented role as the true parliament of the republic.

That God-has-spoken stuff, by the way, was not how Abraham Lincoln saw it: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the supreme court. the people will have ceased to be their own rulers." I'm with Abe. On this Independence Day, the American people might wish to give some thought as to how they might reclaim their independence from the God-like supremes.

Rule by the judicial interpretation of principles is problematic enough for some of us. But rule by the judicial interpretation of lack of principles takes us to dizzying new heights. Last week, in two rulings, the supreme court decided that (a) displays of the Ten Commandments on government property are constitutional and (b) displays of the Ten Commandments on government property are unconstitutional.

Don't worry, all nine judges aren't that wacky, just the deciding vote in both 5-4 decisions. For once that belonged not to Sandra Day O'Connor, but to Stephen Breyer, who rejected the Ten Commandments in Kentucky but gave them the thumbs up in Texas.

His grounds for doing so were that the Texas commandments had been there 40 years and were thus part of "a broader moral and historical message reflective of a cultural heritage", whereas the Kentucky commandments were newer and "a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive".

Really? The only way to be sure yours is constitutional is to sue over it.

For one thing, Justice Breyer didn't identify the year in which he believes the Ten Commandments ceased to be constitutional. 1968? 1973? Maybe a sliding scale? If you put up the commandments before 1965, you can have all 10; between 1966 and 1979, you can have six firm commandments plus a couple of strong recommendations.

To be sure, the supreme court took other factors than the year of manufacture into consideration - whether the display was inside or out, whether it was surrounded by a full supporting cast of religious artefacts or secular knick-knacks etc. But it's hard to discern any principles here, at least when compared to their one-size-fits-all abortion absolutism. To the best of my knowledge, Justice Breyer has never claimed you can have a first-trimester abortion in the parking lot but for the full partial-birth extraction-and-dilation you have to be indoors.

A couple of days beforehand, the majesty of the law turned its attention to "eminent domain" - the fancy term for what happens when the government seizes the property of the private citizen.

Most laymen understand the "public interest" dimension as, oh, they're putting in the new eight-lane highway and they don't want to make a huge detour because one cranky old coot refuses to sell his ramshackle dairy farm. But the supreme court's decision took a far more expansive view - that local governments could compel you to sell your property if a developer had a proposal that would generate greater tax revenue.

The constitutional conflation of "public interest" with increased tax monies is deeply distressing to those of us who happen to think that letting governments access too much dough too easily leads them to create even more useless government programmes that enfeeble the citizenry in deeply destructive ways.

Nonetheless, across the land, governments reacted to the court decision by sending the bulldozers round to idle expectantly on John Doe's front lawn: in New Jersey, Newark officials moved forward with plans to raze 14 downtown acres and build an upscale condo development; in Missouri, the City of Arnold intends to demolish 30 homes and 14 businesses to make way for a Lowe's Home Improvement store and a mall.

Get the picture? New Hampshire businessman Logan Darrow Clements did. He wants to build a new hotel in the town of Weare and he's found just the right piece of land - the home of supreme court judge David Souter.

In compliance with Justice Souter's view of the public interest, Mr Clements' project will generate far more revenue for Weare than Mr Souter's pad ever could.

I don't know about you, but the last time I was in Weare, I couldn't help thinking that what this town urgently needs is a good hotel.

If it will help the board of select men in their decision, I personally pledge to take the most expensive suite in the new joint for the first month it's in service. I'll be sluicing plenty of big columnar bucks around town, racking up big New Hampshire Meals Tax payments at Weare's finest restaurants and, along with my fellow guests, doing far more for the local economy than one ascetic, largely absentee bachelor like Justice Souter could ever do.

So let's get on with putting his principles into action and with luck his beloved but economically moribund abode will be rubble by the end of the year.

How's that banned-in-Kentucky commandment go? "Thou shalt not covet thy neighbour's house, nor his ass." However, if thy neighbour is an ass and thou hast financing for a luxury hotel, covet away.

Lincoln was right about a robed state: a handful of whimsical judges settling the rights of 300 million citizens is not republican government.

I hope George Bush understands what's at stake with Sandra Day O'Connor's replacement: this Independence Day, America needs a "new birth of freedom" - from judicial activism.