Bench Memos

Kelo, Kinsley, and the Left

Last week’s Supreme Court decision in Kelo v. City of New London, which effectively eviscerated the “public use” requirement of the Takings Clause, illustrates a broader tendency among the six overtly non-originalist Justices who dominate the Court: Consistent with their own policy preferences, these Justices will ignore or dilute express rights (e.g., right to keep and bear arms) that the Constitution actually confers and will invent rights (e.g., abortion) that it does not confer.

Michael Kinsley’s column on Kelo provides an amusing illustration how the Left would literally rewrite the Constitution. In asserting that Kelo “was about the requirement that any government taking must have a ‘public purpose,’” Kinsley evidently thinks (or wants his readers to think) that the text of the Takings Clause has a “public purpose” requirement, rather than a “public use” requirement.

Other examples of language that the Left pretends that the Constitution itself embodies include, of course, the “separation of church and state” and a generalized “right of privacy,” the contours of which judges must divine. Ruth Bader Ginsburg even pretends that the Constitution’s preamble contemplates that it is judges, rather than “We the People of the United States, whose task it is to “form a more perfect Union.”

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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