PRESTOPUNDIT

Welcome to Plato's Republic of the United States.

We are now living in Plato's Republic -- a republic of philosopher kings -- rather than Madison's Republic -- a republic of traditionally inherited rights democratically mediated and reformed by the people themselves. Instead, we are now ruled by a committee of five according the post-founding inventions of morality constructed by Kant and Mill (read a bit of Justice Kennedy in Lawrence vs. Texas to see what I mean), and not by the democratically sanctioned yet inherited laws and traditions of British liberalism. It's been a century long revolution, but the revolution is complete. Legal Theory Blog has a useful account of how the notion of "legitimate state interest" was morphed and constructed into a tool for completing this deep change in how we rule ourselves in America. The upshot:

We are now in a position to take a very broad view of the notion of legitimacy that the Supreme Court has employed for about 100 years. We now can see a familiar pattern. Language that was initially used for one purpose (sphere of authority) is adapted to a quite different purpose (minimally sufficient weight) and then morphs into something else entirely. It is no longer clear that the Supreme Court has any coherent view of what constitutes a "legitimate state interest." And it is far from clear that the emerging new concept of a "legitimate state interest" will have any relationship to the concept of legitimacy. In all likelihood, this conceptual incoherence will not bother the Supreme Court. After all, the Supreme Court, like Humpty Dumpty, can say "When we use 'legitimate state interest,' it means just what we choose it to mean--neither more nor less."

But read it all -- lots of interesting details on the history of how all this happened, and when.