Justice Sandra Day O'Conner's sudden retirement from the Supreme Court represents one of the most critical moments for the direction of our country in years. A former Republican state legislator appointed to the high court by Ronald Reagan -- she was a conservative in a court that has drifted further and further to the right. Her vote was often critical in closely-divided, controversial decisions -- from environmental protection to civil rights to reproductive rights including the mother's-health exception.

So the stakes for Bush's choice to replace O'Conner could hardly be higher. There is no question that Bush will nominate another conservative, although as Jeffrey Rosen points out, these days there are many types of "conservative" judicial philosophies. Empty phrases like "judicial activism" and "strict constructionist" are certainly code words, but they may be received differently by Bush's two bases, social and economic conservatives.

In particular -- Bush has seemingly promised the religious right that he would nominate judges who would restrict individual rights and expand government power to control private, personal behavior. These Moralists' concerns are typified by outrage over the striking down of "sodomy" and porn laws and, of course, reproductive rights.

At the same time, many of Bush's controversial lower court nominees embodied a rarified "Libertarianism," or "Constitution-in-exile" philosophy. Judges like Janice Rogers Brown believe the federal government has little or no power to make environmental or business regulations, consumer protection, or even any large program like Social Security, which she called "the triumph of our socialist revolution." So these "Libertarians" would restrict the power of the legislature to enact popular laws, on the basis that such laws might interfere with an abstract, robber-baron notion of property rights.

Although liberals have not created a legal movement around soundbites and sham "philosophies," it's probably safe to say that most of us see a democratic will defining the scope of government through the legislature, but with a definite, unimpeachable role for the judiciary: protecting individual rights. Since minority rights are almost by definition opposed to majority rule, our form of government keeps them safe from all-too-frequent legislative overreach.

On the other hand, Moralists would expand government power at the expense of individual rights, and "Libertarians" would constrict government power at the expense of democratic protections. These two basic "conservative" philosophies may in the end be contradictory, but for the time being their strange political alliance continues under the careful syntax of President Bush.

The last week of June saw two 5-4 court decisions that hint at the struggle each of his bases is prepared to wage.

Moralists' myth: The Ten Commandments cases reveal judiciary "hostile" to Christianity

O’Connor’s endorsement test has effectively become the law of the land because she frequently holds the Court’s tie-breaking vote in Establishment Clause cases.

O’Connor’s attentiveness to the emotional well-being of all citizens may be well intentioned, but her approach to church-state disputes has lent itself to decisions that are hostile to religion. (Vincent Philip Muñoz, "The O'Conner test," National Review, 7/6/05)

Weigel writes: "In the minds of many Europeans, [...] Christianity was (and is) an obstacle to the evolution of a Europe at peace [...]." This also explains the Judeo-Christophobia of the U.S. elite, including the elitists on the United States Supreme Court, who view even the most innocuous acknowledgements of our Biblical roots with fear and loathing. ... Only an elitist who lives in a cocoon could survey the decline of morality over the past four decades (and the corresponding rise of social angst), and say the Great Divorce that the Supreme Court presided over ­ the separation of faith from our public life ­ has served us well. (Don Feder, "Denying our country's founding," Front Page, 7/4/05)

This week, the Supreme Court of the United States once again proved that it is a feckless, dictatorial and altogether ridiculous body. Its latest spate of decisions reveals legislative usurpation, disingenuous deference and silly inconsistency. But, of course, what else should we expect from the court that tells us our Constitution protects pornography but not political advertising, sodomy but not the Ten Commandments, and mentally disabled murderers but not private property? ...

The idea that the founders would have objected to a public display of the admonition "I am the Lord thy God" is a disgrace to their memory. (Ben Shapiro, "When justices become dictators," Town Hall, 6/29/05)

Under the sham principle of neutrality, the lowest common denominator of the culture gets to define the public square while the very theism that informed the country's founding is declared criminal. The lawless judges of the Supreme Court can't bear any laws above them, whether they come from Madison or Moses. (George Neumayr, "Holy Moses," American Spectator, 6/28/05)

[I]nsofar as this ruling stands as an attempt to scrub religion from public life, it serves as a reminder that Mr. Bush has hard work ahead of him in the search for the right judges for the nation's courts. (Editorial, "Taking down the Ten Commandments," Washington Times, 6/28/05)

A secular-minded Supreme Court ... has slapped religious Americans in the face with wet towels. (Bill Murchison, "Supreme obfuscation," Washington Times, 6/30/05)

The court came down somewhere between Mount Sinai and the golden calf. The one case, in Texas, saying the display was okay; but in the other case showing a growing hostility -- not neutrality, but hostility -- toward religion, in particular Christianity. (Tony Perkins, president of Family Research Council)

REALITY

In two separate cases of courthouse Ten Commandments, the Supreme Court largely upheld its longstanding position that some kinds of religious displays do not threaten establishment of religion -- such as, in Texas, a Commandments monument outside among other memorials -- and some do -- such as, in Kentucky, officials explicit in their goal of state endorsement and promotion of religious doctrine.

It should be noted, as we wrote on our blog, that until judges begin confusing their worldly duty to enforce man-made laws with their belief in the laws of heaven, this ought to be a pretty low-priority debacle. But that shouldn't obscure the obvious First Amendment issues at stake.

In particular, no matter what your personal beliefs are, it should be clear that the Ten Commandments are, in fact, religious doctrine. While our nation's laws certainly endorse its prohibition of murder, false witness, etc., you don't have to read very far to get to the religious part:

I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage. Thou shalt have no other gods before me.

Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth. Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me (First and second commandments, Exodus 20, King James Version)

That passage is likely subscribed to by the vast majority of Americans in their individual consciences. It, and much, much more, is promulgated far and wide by our devout population, and our society is the better for it.

But we should not forget the lessons of our forebears, who fled illiberal lands to find and found a nation based on freedom of conscience -- that neither shall free exercise of religion be limited, nor shall the state establish doctrinal truths. Those two principles, enshrined in the First Amendment, have given us the most dynamic religious life of any nation on earth.

Evidence of this religious life can be found everywhere -- from churches to television, movies, and public testaments of politicians. More tellingly, it is found in millions of Americans exercising their conscience freely, both in private and public expression.

So how is it that the First Amendment prohibition on government endorsement of religious doctrine is any kind of "hostility" toward religion? That's is the motif of this campaign in the culture war, that "militant secularists" (as Don Feder creatively puts it) are trying to stop Christianity in its tracks.

Justice Scalia, hero to the Moralists, wrote of this "hostility" in his dissent. He also added an elaborate and disturbing prescription for separating various religious beliefs into classes of acceptable and unacceptable endorsement, based on his own amateur historio-demographic survey. (Muslims will be delighted to know that Islam has joined Catholicism, Judaism, and Mormonism as currently palatable to the arbiters of the sectarian state. Hindus, Buddhists, and Unitarian Universalists can remain in line. Atheists can go back to Russia.)

This is ridiculous. As Marci Hamilton writes:

When the government fails to endorse a point of view, it hardly means that it is hostile to that point of view - any more than a celebrity who declines to endorse a product is necessarily hostile to that product!

Like all other speakers, religious speakers have an equal right to send their message in the public square: It is their right, under the Free Exercise Clause. They also have the First Amendment right to spread, and to generously fund the spread of, this message - and they do. But the Establishment Clause says that religious speakers who do send this message, may not coopt government support for it by enlisting the government's stamp of approval.

The same victim mentality was on display during the trumped-up "War on Christmas" last December.

A fundamental element of getting support for a war is to claim you are under attack, and you must respond -- hence these cries of persecution from the most dominant and successful branch of Christianity in the country. But it is their culture war of choice, not ours -- they require us to endorse their beliefs in unison -- and they want government enforcement of their moral codes of behavior.

We would live and let live our personal consciences.

Libertarians' myth: Eminent domain is unconstitutional, a "socialist attack"

America's socialists want more control over our lives, property and pocketbooks. They cannot always get their way in the legislature; the courts are their only chance. There is nothing complex about those 12 words [eminent domain clause] the Framers wrote to protect us from property confiscation. You need a magician to reach the conclusion of the court's majority.

I think the socialist attack on judicial nominees who would use Framer-intent in interpreting the Constitution might also explain their attack on our Second Amendment "right of the people to keep and bear Arms." Why? Because when they come to take our property, they don't want to risk buckshot in the backsides. (Walter Williams, "Socialist fiat," Washington Times, 6/28/05)

[T]he Court effectively rewrote Madison's Takings Clause, replacing the words "for public use" -- designed to allow takings only when that property was for actual use by the public -- with the phrase "public purpose," which allows government to take property whenever it deems that a good idea. The Constitution had to be altered, and the property owners' homes destroyed, to serve the "ever evolving needs of society."

Indeed, the Court's decisions are disturbingly candid about its desire to make private property subservient to the whim of government decision-making. This deferential view of the government's power to appropriate property without meaningful constitutional restraint has little in common with the understanding of the Framers.

The Court is, in fact, very close to having more in common with Lenin, when it comes to private property, than it does with Madison. (J. David Breemer, "O Madison, where art thou?" American Spectator, 6/29/05)

However outrageous it may be to make constitutional protections for property rights vanish by verbal sleight-of-hand, that is unfortunately very much in the "mainstream" of legal thinking, as the majority opinion in Kelo v. New London demonstrated by citing precedents leading in that direction. ... [O]ver the past half- century or so, many judges have gone beyond their judicial roles to impose their own policy preferences. Since these kinds of judges have almost invariably imposed policies favored by liberals, they have been cheered on -- not only by liberal politicians, but also most media, law schools and intelligentsia. (Thomas Sowell, "'Mainstream' judges," Washington Times, 6/30/05)

REALITY

Substitute "religious rights" for "property rights," and you can almost -- almost -- put one side against the other. But the cries of persecution remain the same -- in this case, property rights, the sole and absolute standard of justice around which the "Libertarian" Constitution revolves.

Although a vital component of the philosophy of John Locke and the founding of America, the right to private property is mentioned approximately once in the Constitution itself, in the Fifth Amendment. It states that "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." (The due process part is repeated in the Fourteenth Amendment, for states.)

In the case of Kelo v. New London, the court once again merely upheld a longstanding interpretation of the Fifth Amendment -- that there is a limited judicial role in determining what constitutes "public use" in eminent domain. The city of New London, CT, took the houses of several residents for economic development; in doing so, the public New London Development Corporation is contracting a private developer to carry out the actual construction, etc., of the site. The novel complaint was that this use of a private contractor makes the development no longer "public" -- it was this argument that failed.

This kind of eminent domain happens everywhere in America, on the local level. In your correspondent's own hometown, the city council exercised its takings power just two years ago in yet another downtown revitalization effort. There was some controversy, and a lot of grumbling -- Was it worth it, taking this extraordinary step? This is not a liberal or conservative question. Seizure of private property is something that should make all of us uncomfortable -- we should always stay vigilant that our town halls don't ride roughshod over citizens.

But let's take another look at the Takings Clause: "nor shall private property be taken for public use, without just compensation." It's unambiguous -- government can take private property, as long as two requirements are met. Under our Constitution, public use -- public good -- trumps private property rights.

Yet, listening to the outrage from conservatives, you'd think that the Kelo decision was a bunch of "activist judges" discovering some new power.

Instead, a certain brand of conservative -- the "Libertarian" -- holds an extreme view of property rights ideal, even when explicitly contradicted by the Constitution's statement of property rights itself. This view of property rights is most eloquently expressed in the case of a humble citizen and his or her land. But, in their theory, it extends far, far beyond -- to the circumscription of government regulation in general, and, in concert with the "Libertarian" view on commerce, the elimination of most domestic government programs.

As Robert Bork -- of all people -- wrote of one property-rights theorist, "My difficulty is not that [Richard] Epstein's constitution would repeal much of the New Deal and the modern regulatory-welfare state but rather that these conclusions are not plausibly related to the original understanding of the takings clause." We have difficulty with the first part, too.

* * *

In each of these cases, the legal camp puts its best face forward. Rather than their highest priorities of outlawing abortion and homosexuality, the Moralists are "merely" putting up a sign in a rural courthouse. And rather than dismantling Social Security and the EPA, the "Libertarians" are trying to protect the little guy from getting his house taken.

But even in these, the conservatives' ideal cases, the Supreme Court has largely stuck with precedents that have been established for many years -- the 1971 Lemon test of religious endorsement and judicial deference in eminent domain, dating at least as far back as 1954. In other words -- as has been the case so often this year, the court came back with an entirely unsurprising verdict, perhaps with some slight, technical difference, and conservatives cry outrage.

"Judicial activism" is an empty pejorative now, but if you had to choose whom to apply it to, who would it be: the court's majority, as it mainly upholds precedent and keeps things the way they are, or these Moralists and "Libertarians," who demand a break from the past and a new, dubious interpretation of the Constitution?