On the recordAugust 5, 2010
I will say that one of the unjustifiable actions of the judicial activist philosophy that is too much afoot in America today is their willingness to completely be oblivious to plain constitutional rights, things that are flatly stated, and then to create rights that do not exist. For example, the Constitution gives the right to free press, but we had Solicitor General Kagan arguing before the Supreme Court in defense of this campaign finance bill that a corporation could be prohibited from producing a pamphlet before an election that might be critical of a politician. I mean, that is what the first amendment was about. It wasn't about pornography or flag burning, for heaven's sake. It was about political speech, plainly in the Constitution. Yet we had four members of the Supreme Court--a vote in an opinion recently--who said the government could ban the pamphlets. Actually, another lawyer for the government argued you could ban books. The Supreme Court, by a 5-to-4 majority did, in fact, say that you could take a man's private drugstore--the government could--and give it to another man who had a competing drugstore; in other words, taking private property for private use. The Constitution says you can't take private property except for public use under condemnation. A plain violation, 5-to-4 approved.
