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Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review June 28, 2005 / 21 Sivan, 5765

GOP Judicial Activism Takes a Hit

By Michael Kinsley


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http://www.JewishWorldReview.com | The "takings" clause of the 5th Amendment is for conservatives what the equal protection clause of the 14th is for liberals. It wouldn't be fair to say that conservatives cherish property the way liberals cherish equality. But it would be fair to say that the takings clause is the conservative recipe for judicial activism — imposing their agenda through the courts, rather than bothering with democracy — the way they say liberals have misused the equal protection clause.

Of course, conservatives always claim to be against judicial activism. Liberals have long suspected that this was a decoy, and that once conservatives had control of the federal courts, they would twist their mustaches, laugh contemptuously and reveal the various policies they planned to impose by judicial fiat.

Conservatives and liberals alike have been waiting for this moment for a third of a century. Each Supreme Court appointment by a Republican president seems to be "it." And yet "it" hasn't happened. Roe vs. Wade — the high water mark of liberal judicial activism — still stands. And on Thursday, the court said a surprise "no thanks" to judicial activism, Republican style.

The equal protection clause was a handy tool for liberals because just about anything the government does or doesn't do can be framed as treating people unequally. (You get pulled over for speeding and he doesn't; she gets a job and you don't; the president calls on him at a news conference and not you, and so on.) When does unequal treatment become unconstitutional?

In the heyday of the Warren court, almost anything on your wish list was at least worth a try. (Roe vs. Wade was technically a "due process" case, but it used "equal protection" analysis. Don't ask.) Almost any government activity can also be seen as taking property "without just compensation."

The basic model of an unconstitutional "taking" would be if the government threw you out of your house.

But the godfather of the "takings" movement, Professor Richard Epstein of the University of Chicago Law School, says: Suppose the government enacts zoning or environmental regulations that reduce the value of your house by half? Isn't that a taking, just as if the government had taken your house itself? Or suppose it gives someone a government benefit that you don't get, but, as a taxpayer, will have to pay for? Isn't that a taking also?

In law school, this is called "salami slicing" and it has been known to drive people mad, including (in the opinion of some), Professor Epstein. But his logic is compelling. Once you start down the takings road, it's hard to stop before Epsteinville. Possibly for that reason, the Supreme Court has clung pretty tight to literalism, and declined repeated invitations to use the takings clause like a scythe to cut the government down to size.

The case decided on Thursday, though, seemed promising to takings fans because it wasn't about compensation. It was about the requirement that any government taking must have a "public purpose." They can't take your house and give it to the mayor's mistress, even if they pay you for it. But they can, apparently, take your house and tear it down to make room for a development of trendy shops, restaurants, a hotel, and so on. That was the plan in New London, Conn., until a few working-class spoilsports wouldn't budge.

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The court ruled, 5-4, that yuppification is a valid public purpose. Or at least it was reasonable for the city of New London to promote yuppification. Who wouldn't like a few more Starbucks in town? The four dissenters (O'Connor, Scalia, Thomas and the chief) said that if this is a "public purpose," what in the world is not?

One answer is that the town's elected officials thought the project served a public purpose, and the subsidies and favors were worth the price. But they may or may not have thought this.

When local government showers a big development with money and favors, it's usually not about sovereignty but about lack of sovereignty. Developers play jurisdictions off against one another, extracting concessions from all that none would actually make a sovereign decision to give. A Supreme Court decision that concessions of this sort were unconstitutional would have taken them off the table and actually increased the effective sovereignty of elected officials.

A couple of weeks ago, the court closed off another promising avenue for conservative activism when it ruled that states cannot exempt themselves from federal laws against the medical use of marijuana. Like almost all assertions of federal power over the states, this one was based on the constitution's commerce clause. The logic is often far-fetched — how does medical marijuana affect interstate commerce? And some conservatives would like judges to start throwing out federal laws wholesale on commerce clause grounds. The court, once again, said no thanks.

So the danger of conservative judicial activism has been averted for another year. Stay tuned.

Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

Michael Kinsley is Los Angeles Times Editorial and Opinion editor and former editor of Slate.com. Comment by clicking here.



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