Rights and Power
The salus populi principle that the legislature can do anything it wants, unless expressly forbidden by the Constitution, has always rested upon a somewhat shaky foundation.
For a nation founded on the notion that the Constitution is the supreme law, binding even legislatures, the claim that the public good--as determined by the legislature--is in fact the Supreme Law raises troubling questions.
Certainly it is a view that the Framers would have regarded as controversial.
In the words of Justice Joseph Story:
"-- Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed.
It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the trancendental sovereignty to take away vested rights of property; to take the property of A and transfer it to B by a mere legislative act.
A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property should be held sacred.
At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power.
The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect. --"
In other words, courts should not sit idly by when the legislature takes property from A to give it to B.
Rather than asking "Does the Constitution expressly forbid such an act?" the courts, according to Justice Story, should ask, "Does the Constitution expressly allow such an act which is contrary to common law principles?"
Smoking pot, polygamy, and incest are vital to the American Peoples' security and well-being? This will shock you, but most (read "most all") don't agree. We could ask around or even take a vote to see if that's true, but I know how representatives deciding things like that gets you all in a tither. You seem to prefer judge shopping instead. I preferred "yada, yada".