In theory, the supreme court should see through "loop holes" and interpret the meaning of the constitution, not just the words.
(Not that I'm complaining, I'm fine with the court doing this, but it would be nice if it were an enumerated power)
Its not a separately enumerated power, but you can't resolve a legal case without first determining what the law is, including resolving conflicts between different laws that appear to be applicable, such as the Constitution and federal statutes.
However, it does seem to follow inherently from:
1) Precedent (as policy, not any particular instance)
2) The ability to determine/resolve contradictions between laws
3) The supremacy clause of the Constitution
The job of lawyers is to find loopholes. Since the entire scotus is composed of lawyers we more strongly risk having a court that chooses to sympathize and reward cleverness in finding loopholes that are technically correct according to the letter of the law. For example, myriad genetics.
Those cases involve really tricky stuff in the sense that there's nothing really clear in the Constitution on how to resolve the cases. So, the SCOTUS had to 'interpret'. For what they did in those two cases, I see no big threat to the US. For Kelo, my sympathies for the poor guy who owned the property that got taken away from him. For Myriad, I thought that that was a really nice step toward something that makes sense in patent law. So, if invent some DNA, then maybe can patent it. But if just read some DNA from a drop of my blood, then can't patent it. For cDNA, I saved time by not checking out the details -- maybe after I watch some more Eric Lander videos!
But for the NSA getting the phone call metadata on all 120 million or so Verizon customers, apparently once a day, for years, I see mud tracked over the Fourth Amendment with no real doubt. And I see a threat to the US, e.g., another Nixon "taking the gloves off", using that data to go after his "enemies", and building a tyrannical dictatorship.
So, I can see it now: "Dear NSA: I'm a good, long time Verizon customer. I met this girl on-line, and we met at a bar and then went back to her place. I saw her for six months, and then she told me that I'd gotten her pregnant. I don't believe it. So, what I need are her phone records so that I can track down who she was talking to on her phone, who she was sleeping with, and who got her pregnant. So, from you, I need the phone records. Help!"
So, between the two cases you cited and the present NSA-Verizon issue, I see a difference in kind. There are some bright people on the SCOTUS, even if they are lawyers. Maybe they are bright enough to go above some narrow, loop-hole infested view of the law and think effectively about protecting the Constitution and the US essentially as the founding fathers did and intended. I hope so.
Arguably eminent domain abuse is more of a big deal than NSA wiretapping, it's something that has an impact, an disproportionate impact on the unwealthy and politically marginalized, and it happens in your backyard, all the time, for example: http://reason.com/reasontv/2007/11/15/national-city
As for myriad, I happen to be against patents in general, but my point was that the myriad lawyers really did a solid job of patenting genes. Despite my objection to patenting, given that it's constiutional and legal, I disagree with the SCOTUS decision, that the PCR product (cDNA or otherwise) is actually an artificial molecule by any reasonable definition of molecule and should be allowed to be patented. More subtly, I think it is Congress' responsibility to decide whether or not genes (in the fashion of myriad's patents) should be patentable. So it's an example of crafty lawyers (myriad's lawyers) extending their de jure power (using "composition of matter" patents to de facto become "gene" patents). And then the SCOTUS comes and creates this convoluted judgement about cDNA vs PCR, and introns versus no introns, which speaks to my point about how the court (probably not deliberately) works to incentivise legal cleverness, further justifying the existence of its own profession - possibly at the expense of society's broad interest in having a simpler legal code.
> Arguably eminent domain abuse is more of a big deal than NSA wiretapping,
Yes, except for what I'm concerned about, another President Nixon with an "enemies list" who wants data not just from the IRS but also the NSA, CIA, FBI, and Obamacare. Then he might become a tyrannical dictator.
In the 'normal course of events', with the NSA getting even a grade of C in protecting the data they have, you may be correct that Kelo is of more concern.
Apparently for now, so far, all that data the NSA has gotten has not actually caused much in real problems to our democracy. And I can believe the claims that we're talking only a few thousand people in the US individually 'investigated' via that NSA data. And I can believe that on a good day General Alexander really does do the right things for the US and, really, is a significant aid to US national security.
Still, there's the Fourth Amendment and the chance of another Nixon. And there are the concerns of the founding fathers. So I believe that the NSA has been trashing the Constitution and that the SCOTUS has to correct that situation.
It might take two years for the SCOTUS to issue even their first related opinion. Really, the whole process will take time. I don't think that what the NSA has done so far is so dangerous to the US in the short term that we can't afford the time. Still, long term, we need the Constitution intact.
Here's some 'perspective' on the threat of Kelo: Last night watched a VCR of an old PBS program 'Great Composers', this one on R. Wagner. I like classical music.
If forget about everything about Wagner except just the music, keep just the music, and ignore even the libretti, f'get about his love life, politics, connections with wacko King Ludwig, his various essays, what his wife Cosima wrote about some of what he said in his 60s, some of his professional fights, etc. and pay attention just to the music, and there only the better, say, 90% of his music, and like classical music, then he can be amazing. To me, astounding.
I want to get my start up done and then work through some of his orchestration, say, for the "Prelude" to 'Parsifal', and get an idea how the heck he did it. The orchestration for his "Magic Fire Music", from 'Die Walküre', is likely simpler, and still I'd like to work through the details.
Heck, I'd like to type in such music and have a computer-based synthetic orchestra calculate the 'performance' and then adjust the orchestration to see what was causing some of the amazing effects he did achieve.
Long ago I picked out some of his 'themes' ('leitmotifs') on violin -- they can be simple to play and still be just magic, and much that he did was not at all simple.
So, the PBS program mentioned that Wagner had an idea: In Munich is a big, long, wide street with a big statue in a big circle in the middle and the street leading up to a big parliament building or some such. So, Wagner's idea was, next to the parliament building, put up an opera house, by far the biggest ever, and have 'government and art' joined! And before his opera house he wanted another long, wide street.
One little problem: His street would require leveling much of old Munich, much as you mentioned. Well, the 'city fathers' of Munich were not quite as taken with Wagner's grand dreams (likely great to have when sitting alone at a piano and writing fantastic music about fantasies of magic swords, flying horses, magic gold rings, gods coming to earth and mating with humans, etc. but a disaster if applied to level much of Munich) and turned down Wagner's dreams. So later a much more reasonable opera house was built for Wagner's music in Bayreuth!
Wagner's music was a good start on much of the music of Hollywood of the past 80 years or so, e.g., Max Steiner's music for 'King Kong'. So, Wagner's music has had an impact even without leveling much of Munich!
Generally, if the city fathers of Munich can turn down Wagner, and maybe also King Ludwig, then generally US city fathers will be somewhat reluctant to level large parts of their cities, Kelo decision or not!
The university of chicago, my alma mater, is very guilty of converting hyde park through heavy handed use of eminent domain.
There's this: http://battleforbrooklyn.com/
This one is also pretty crazy: http://www.nytimes.com/2010/06/25/nyregion/25columbia.html?_...
A general watchdog for eminent domain abuse: http://www.emdo.blogspot.com/
To the credit of what you say, though, 7 states have passed strong legislation against abusive eminent domain takings in the wake of Kelo, and 15 more have tightened the ship significantly, and a few state supreme courts have weighed in as well.
There is
> The community’s efforts to have a meaningful say in its future, in the face of top down development and crony capitalism, is a universal story being played out all across the US,” said director Mike Galinsky.
Sounds like democracy, politics, or that bad part of democracy 'the tyranny of the majority'. Mike got elected and, one can believe, has tried to 'make NYC a great place'. In doing so, can believe he'd rather eat a fancy lunch with the Barclays guys than the Brooklyn neighbors of the development site. It's 'democracy' in that Mike was elected.
There's an old comment on democracy: It's intention is just to avoid bloodshed. So, fight it out at the polls as a proxy for what it would be like if the sides met with weapons and fought it out to the death. So, we've avoided bloodshed. If we haven't been really fair or achieved 'social justice', if some 'little people' got stepped on, we expected something else? But, for such tyranny of the majority, courts and a constitution can be important fixes.