Eminent Domain

Rick Esenberg recently linked to the same article that I discussed in this post. He also has problems with Wisconsin Supreme Court candidate Linda Clifford's judicial philosophy. Here's Rick being much more eloquent than I was...

The problem, of course, is that we generally expect judges to apply the law and the legislature to make it. Although the constitution can trump legislation, we accept that because, at some point, the constitution was consented to by the people. The people decided to place certain limitations upon their elected representatives.

If you allow the constitution to "breathe" (i.e., "change") to reflect what you think society needs, you have lost the legitimacy that the consent of the people confers. They never agreed to whatever it is you think the constitutional document is exhaling today. You have substituted your judgment for theirs.

We could have chosen to be governed this way. We could have said that we'll just elect seven wise people to do whatever they think is right. But we didn't. We chose democracy and a judiciary that applies the rules (statutes and constitution) that the people make.

He closes by giving the voters a choice...

Of course, there are nuances, subtleties and matters of degree involved here. We can make it as complicated as it needs to be, but, at the end of the day, this isn't lawerly inside baseball. It goes directly to who gets to make the decisions that govern our common life. If you want to be ruled by judges, then a living, breathing and mutating constitution is a good thing. If you don't, it's not.

You decide.

Well said.