"The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution's framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.
The absence of meaningful constitutional limits on the power of government over property and the economy has had consequences that should cause both liberals and conservatives to rethink the wisdom of sweeping judicial deference. For example, last fall Congress enacted the Troubled Asset Relief Program, putting hundreds of billions of dollars at the personal discretion of the secretary of the Treasury. This grant of authority -- which violates the basic constitutional duty of Congress to control the purse laid out in Article I, Section 8 -- transformed the secretary into the most powerful unelected official in American history. Such power, once acquired, is rarely relinquished.
None of this would have been thinkable, much less possible, without the longstanding refusal of the Supreme Court to enforce clear constitutional boundaries on the elected branches."
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