Chicken Little's Guide to Judicial Review
In a speech in Kentucky Justice Steven Breyer spilled the beans, and I don't think he even knew it. While discussing his judicial philosophy he said:
"Judges can consult six basic criteria in assessing a law: the language of the law, the history of the text, tradition behind the text, precedents, the purpose of the law and the consequences of letting the law stand or striking it down. I tend to emphasize purpose and consequences."
So... it doesn't matter what the Constitution says. What the congress meant to do, and what might happen if a law is struck down are the main concerns.
Its this attitude that runs rampant through the judicial branch of the US government, and can be found in every state and county as well. Here in West Virginia for example the constitution allows specifically for a lottery, but nothing else... but these little hotspot gambling places have popped up all over the state offering video poker and such.
Video poker is not a lottery.
But when the case came before the Supreme Court of West Virginia... where they debating the meaning of the word "lottery"? No. They simply said, "The state gets millions of dollars from these machines. What tax do you propose to replace that money?"
Chicken Little in a black robe.
Breyer admitted in his speech that his judicial method was less objective than the conservative approach of focusing on the language of the Constitution... but it certainly doesn't bother him. But it should.
See... with subjectivity comes personal power, where as objectivity creates a separation... a distinction from the source of the power. When you are being subjective about a decision it is personal to you. It is your taste and your feeling that determines the outcome. When you're being objective you realize that you are not the one who is in control... it's the system. Objectively 2+2 will always be 4... even if 4 is scary. Even if you really want it to be 3.
The problem with this purpose and consequences method of judicial review is that the judge who uses it has effectively set himself up as a king, and turned back the clock a thousand years. He's set aside the written law in favor of his own personal guidance.
The law doesn't determine the out come. He does.
This is the folly of the judicial left. They trade the most truly progressive innovation of the last 2000 years, written law, for the very tyranny it was created to avoid.
And they do so... in the name of progress.