Constitution provides "nuclear option" to reign in Supreme Court

The Supreme Court has been a hot topic in the news lately due to the almost universal outrage over the court's eminent domain decision in Kelo v. New London, and the nomination of John Roberts to replace retiring liberal Justice O'Connor. If the Court had the limited power intended by the Framers of our government, the nomination of a justice would not have such earth shaking significance. As it stands, the only defense against egregious rulings like that in the Kelo case is to appoint justices such as Antonin Scalia and Clarence Thomas who will limit their own power, since no one else will do it.

What was so terrible about the Kelo decision, and why is it an example of our fall into judicial tyranny? Kelo stamps the Supreme Court's imprimatur on any government attempt to seize private property for any reason they can come up with. That is a violation of the fundamental purpose of government: to protect the life, liberty and property of citizens.

Kelo is merely the latest in a long history of judicial legislation. The Constitution grants "all legislative power" in our government to the Congress. When the Supreme Court makes new law by imposing their own beliefs over the clear words of the Constitution, they are usurping the legislative power which belongs to Congress alone. Worse, they usurp the exclusive power of Congress and the states to amend the Constitution. In the Kelo case, the Court has redefined the term "public use" in the Fifth Amendment to include private uses that have supposed public benefit. Regardless of whether that is a good idea (it is not), that flies in the face of the clear meaning of the words. Kelo is "law" made by five Supreme Court justices in defiance of the Constitution. It breaks the system of checks and balances that is designed to keep our government from devolving into tyranny.

The Constitution provides for removal by impeachment of "all civil Officers of the United States" for "Treason, Bribery, or other high Crimes and Misdemeanors." Further, the tenure of a federal judge is to be "during good Behaviour." Deliberate and repeated violation of the Constitution is a high crime, and falls short of any reasonable definition of good behavior. Six of the nine justices, especially the Kelo majority, can readily be shown to have engaged consistently in such judicial legislation, and ought to be removed from office.

Many will object that such action is a "nuclear option" which would violate "judicial independence." The Framers, especially Alexander Hamilton, talked a lot about judicial independence, and it is indeed an important principle. Justices must not be subject to periodic re-appointment by those whose legislation they are responsible for holding to Constitutional standards, nor be beholden to Congress for their pay. Those issues are dealt with in the Constitution, which adequately protects judicial independence.

Since Hamilton was such a defender of judicial independence, his expectation of how Congress would deal with judicial tyranny ought to carry some weight: "...the inference [that there will be no danger of usurpation by the Supreme Court] is greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments, in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department... There never can be danger that the judges, by a series of deliberate usurpations of the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations." In other words, Hamilton assumed that Congress would guard its exclusive legislative prerogative by using the impeachment power.

Hamilton, though a great debater of governmental principles, was obviously not such a great prognosticator. Several dangers that he thought negligible, including judicial usurpation, have indeed come to pass in our time. He could never have imagined that Congress would so neglect its powers and duties as to allow the Supreme Court to expand its power far beyond that granted in the Constitution.

If anyone has any doubt that what the Supreme Court has been doing constitutes legislation, we have the testimony of no less a luminary than Senator Charles Schumer (extreme leftist Democrat of New York). The senator, in expressing the importance of the nomination of justices, recently said that "The Supreme Court makes law. We hope they do it by interpreting precedent and following the legislature, but they make law and therefore you cannot extrapolate. Someone who might make a good DC Court of Appeals judge might not make a good Supreme Court justice and vice versa."

As part of the system of checks and balances, Congress was given the power and the duty to ensure that only they will make law. It is high time that they did their duty and removed the offending Supreme Court justices.