Consider this great insight from Judge Bork:
In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.
Do you see what Judge Bork is saying here? It is the text of the Written Constitution that has been ratified by we the people in the states. Supreme Court decisions are only legitimate if they are faithful applications of the constitutional text. When judges amend the Written Constitution from the bench they violate the rule of law and instead embrace the law of rulers.
Consider this excerpt from Paulsen & Paulsen, The Constitution: An Introduction (p. 26):
No branch of the federal government--not the Congress, not the President, not even the Supreme Court--can legitimately act in ways contrary to the words of the Constitution...Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy. In America, no branch of government is supreme...The Constitution is supreme....Departures from these limitations are unconstitutional.
The bottom line is such an "unconstitutional" ruling, although still enforceable by the judiciary, is not a legitimate part of the rule of law. It was wrong when it was decided, and it is ripe for overruling by a later Court.
Should Kelo be overruled? Why or why not?
