Vital Signs

The Coming Slap in the Face

In June 2005, the U.S. Supreme Court handed down its decision in Kelo v. City of New London, depriving property owners of rights that virtually everyone has always assumed they had.  Very soon—before you can say “sequel to Lawrence v. Texas”—the Supreme Court will no doubt take up the issue of same-sex marriage.  You think a majority of justices of the current Supreme Court won’t rule in favor of same-sex marriage—overthrowing a few dozen centuries of nearly universal social practice and moral understanding?  Don’t bet the ranch.

Vis-à-vis the Supreme Court, an ordinary citizen today is like a man in a Honda Civic who has just been hit in front by a slow-moving Ford Explorer.  Still strapped in to the driver’s seat and stretching his neck, he is relieved to find that the whiplash was negligible, too slight to have hurt him, when, suddenly, he is rammed from behind by a Hummer doing 50 miles per hour.

Like distinguishing degrees of physical injury, we hapless subjects of the new era of judicial supremacy need to distinguish unfortunate but bearable or tolerable constitutional decisions from intolerable ones (bearing in mind that tolerable does not mean acceptable).  Constitutionally speaking, it makes sense to see Kelo as a very unfortunate but not disastrous decision,...

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