James Bovard‘s editorial commentary in the latest issue of Barron’s focuses on the U.S. Supreme Court’s recent failures to protect fundamental liberties.
In its recent landmark decision on gay marriage, five Supreme Court justices proclaimed that “the Constitution promises liberty to all within its reach…to define and express their identity.”
While the court proudly created a new freedom, it continues to fail to safeguard freedoms that generations of Americans once enjoyed. Instead, the court perennially turns a blind eye to government agencies that cut vast swaths through the Bill of Rights.
As the court showed in numerous rulings this past term, the primary purpose of “law” nowadays is to provide an opening for presidents to do as they please. In a June decision, six justices saved Obamacare for a second time by effectively ruling that a federally run insurance exchange is close enough for government work to “an exchange established by the State.”
The court’s contortions were even greater in a fair-housing decision handed down the same day. The court sanctified the use of disparate-impact analysis for housing discrimination, thereby creating vast liability for local governments, insurers, and other businesses due to unintentional statistical discrepancies. Five justices sided with the Obama administration, ignoring the actual words of the 1968 Fair Housing Act and instead invoking the logic of previous court rulings on other subjects. As a result, any locality with a lower percentage of minorities than the national average could find itself a target of federal housing enforcers.
Unfortunately, the court has long relied on verbal contortions to sanctify political power grabs. In 2005, in the Kelo v. City of New London decision, the Supreme Court declared that the “public use” requirement in the Takings clause of the Fifth Amendment really meant “public purpose.” Even cases in which the government seizes one person’s land to directly give it to another private citizen can meet this standard, according to the court—since anything that helps politicians presumably serves a public purpose.
