Kelo vs. Roe vs. Raich

No, that isn't some Harriet Miers flub in a Senate meeting, it's a question about our focus as a nation.

A friend emailed me a link to a good piece on eminent domain by Carla T. Main in RealClearPolitics. It's a comprehensive exegesis on the history of application of "the takings clause" including some of its racist use in urban gentrification projects. It also explores the unlikely bedfellows that have risen in opposition. I'll not excerpt it, but I will recommend it (it's good sized, grab a cup of coffee before you start).

The accompanying mail carried the observation that so much attention is focused on Roe V. Wade, people ignore important things such as Kelo v. New London. The point is well taken and I agree.

It got me thinking later, however, about the degrees of exasperation with SCOTUS -- let me suggest a hierarchy:

3. Flubs
A flub is when you wouldn't have voted that way. I'm not sure how I would have voted in Miranda v. Arizona (complicated by the fact I was only four years old) but with forty-one years of hindsight in my favor, I'd say it's been abused and was decided wrongly or at least that the remedies are too narrow.

2. Boners
Worse than a flub is a boner (I'm using that word in a classic "large-mistake" connotation and not to increase my Google hits). It's completely wrong in a what-were-they-thinking? way. I'd put Kelo in here. I know it's the end of the free world to my conservative brethren, but it is avoidable (go Bastiat!) by legislation (as are flubs). Government entities can limit takings all they want, post Kelo. SCOTUS did NOT say that government had to take private property, though we're all disappointed how widely it said government could.

My least favorite decision of my young life is McConnell v. FEC, when they blew their chance to strike McCain-Feingold. The worst, but still legislatively reparable.

1. Clusterf***s
The WORST decisions are those which are both wrong and block legislative fixes. I guess you can put Roe in this camp, as it strikes down state provisions on partial-birth or parental consent; but, you all know where I am going here, the top C*********k (tell 'em what they've won, Johnny) has got to be Raich v. Ashcroft, which said that no wonder how a State voted to allow medical marijuana, John Ashcroft or Janet Reno or Alberto Gonzales or whoever was in charge at the time gets the decision. If you don't like it, hard cheese. You can amend the constitution but that is a long and tough road (I suppose that the 11th and 14th Amendments exist solely to repair bad SCOTUS decisions).

Quod erat demonstratum, my friends, that is why Raich is worse than Kelo. Abuse invited below.

Posted by John Kranz at October 23, 2005 2:31 PM