John Boehner, July 8, 2005

When Supreme Court Justice Sandra Day O’Connor resigned her position it opened the first vacant seat on the Court since Justice Harry Blackmun (nominated by President Nixon in 1970) made way for Justice Stephen Breyer in 1994.

President Clinton was in the middle of his first term when he nominated Breyer. Republicans were still in the minority in the House and the Senate, and President Bush hadn’t been elected Governor of Texas yet. Yet for all that’s changed in the last eleven years one big thing has stayed the same: the tendency of our judges to "legislate from the bench."

Americans don’t have a real say in some of the issues they’re most passionate about. Many of the most hot-button issues have found themselves "decided" by the courts instead of through the political process. And often instead of deciding these issues once and for all the courts have merely made them more complex.

They’ve done so by laying out expansive and wishy-washy definitions, exceptions, and rules for when some things may or may not occur, and by stretching the Constitution in ways the Framers couldn’t have imagined. This has had the practical effect of usurping much of the legislative power of state governments and Congress, and has muddied many of the individual rights and freedoms we usually take for granted.

Take for example the recent decisions by the Supreme Court on whether or not the Ten Commandments may be displayed on government property. Instead of simply answering the question of whether or not such displays were Constitutional, the Court majority in the Texas case argued that the "degree" to which the monument was "divisive" wasn’t enough to be unconstitutional. But in the Kentucky case, because the monument was only six years old (versus the Texas monument, which has been up for more than forty) and has sparked complaints, it’s unconstitutional.

You might ask how a state government or a city hall with a similar monument can know if its display is Constitutional. Good question -- it can’t. Unless of course it is sued, spends thousands of dollars defending itself, and ultimately appears before the Supreme Court. Only then can it receive an official opinion consisting of, presumably, more exceptions, rules, and degrees.

This isn’t what the Founding Fathers had in mind.

Another example of the Supreme Court failing to exercise restraint was its recent Kelo v. City of New London decision. The Court declared open season on property owners by empowering local governments to use their eminent domain power simply for "economic development." It ignored the Constitutional requirement that property be taken only for "public use," and said there really only had to be a vague "public purpose."

This decision weakened property rights by creating a standard that has no logical stopping point. If a state thinks it can increase its tax revenue by kicking you off your land and giving it to somebody else, it’s free to do so.

This isn’t what the Founding Fathers had in mind.

Fortunately there are ways to rein in these excesses. The Constitution gives Congress the authority to define the scope of the federal courts (including the Supreme Court) outside of the few areas where they have "original jurisdiction." The Pledge Protection Act, for instance, would amend the federal judicial code to deny federal courts jurisdiction over questions pertaining to the Constitutionality of the Pledge of Allegiance.

There is also an effort to mitigate the Court’s assault on property rights: the bipartisan Private Property Rights Protection Act of 2005 (HR 3135). This would prohibit the use of federal funds by local governments that try to seize private property for "economic development." I’m a cosponsor of both of these bills.

And of course, with the resignation of Justice O’Connor, and rumors of more resignations to come, President Bush has a real opportunity to nominate justices for whom the Constitution is a document to be adhered to, not stretched and molded. He has the opportunity to restore to the Court a sense of its proper role in the federal government: that of jurist, not legislator. I have no doubt that he will do just that.

It is my hope that as the courts are filled with judges who rule according to the written law (and not what they believe should or should not be the law) Americans will be able to reclaim the political issues of the day for themselves.

Congressman John Boehner, a Republican, represents Ohio's Eighth Congressional District, which includes Miami, Butler, Preble, Darke, and Mercer Counties.