Friday, June 24, 2005

A Liberal Outrage

Yesterday's Kelo decision by the Supreme Court has created a very interesting reaction in the public at large. For those of you unaware of this ruling, the Court essentially expanded the definition of "public use" in the takings clause of the 5th amendment. As a result, governments can now use eminent domain to take possession of private property for the benefit of private development.

Traditionally, eminent domain was viewed as the right of governments to take private property for the "public good", which was generally understood to mean the construction of public infrastructure. Projects such as highways, streets, schools and perhaps even hospitals were understood to meet this definition.

The Kelo case was different. In this case, the city of New London, Connecticut wanted to take the river front property of 15 land owners - one who had been in her property since birth 87 years ago - to enable private development of an office park. New London's motivations for doing so are obvious; such development will increase the value of the property, and raise tax receipts to the city.

Yet, the "public good" is not clear at all. Justice Stevens in his majority decision, expanded the definition of public good to now include economic development. This broad definition is a stunning defeat of property rights in the United States that will have far reaching implications for private land owners and our economy.

It is not a stretch to say that the fundamental building block on which our freedoms are based is the right to private property. John Locke, who's work on "natural law" was the basic philosophy on which the founding fathers justified our revolution and based the founding of our country, was quite clear on this point. In Locke's view, private property results from an individual's hard work to build on and improve the land that God has provided. Without respect for and protection of private property rights, individuals will be reluctant to make the investment necessary to improve land, and in doing so, drive the economy forward.

Building on these thoughts, Locke then argued that individuals must band together and create a system by which their rights to property are protected, and their ability to benefit from their investment maintained. This then is the very moral foundation that gives government its right to exist and enforce the rules by which man has agreed to live. Government's primary role is the protection of individual rights, and the primary right that we expect our government to protect, is our right to property.

Alas, yesterday the Supreme Court decided otherwise.

The question that we all must ask is how did we get to this point? We spent much of the last century fighting this type of abuse of governmental power, only to have our own Supreme Court, shoot us in the back. The answer, my friends, is that this is a liberal outrage.

It is not without a high sense of irony that this morning I read all the liberal blogs in high dungeon about this revocation of our rights. Yet it is the liberals who are to blame. For years in their zeal to force a right to abortion via the judicial branch instead of the legislative branch, liberals have fought ardently for justices that believe in a "living" constitution. They've argued that justices must interpret what the constitution says. In this way, rights that are not enumerated can be "discovered", such as the right to privacy on which the Roe decision was based.

Conservatives on the other hand have argued that the justice's role is to follow the original intent of the framers. They've stongly resisted the idea that the constitution is a living document in favor of the argument that we should conserve the original meaning, and when change is necessary enact it through the legislative process. The two most important battles of recent years where these opposing views met were in the nomination battles of Robert Bork, and Clarence Thomas.

Robert Bork's battle was fundamentally about original intent and liberals fought his nomination for this reason. The Thomas nomination fight often centered around Thomas' views of and belief in natural law. In both cases, liberals had difficulty opposing these nominations on their merit, and resorted to personal attacks on Bork and Thomas succeeding against Bork, but losing on Thomas.

Yesterday's decision was the result of those fights. While Thomas remained on the side of original intent Justice Kennedy, who was appointed to the Court after Bork's nomination was defeated, was the swing vote that created the majority.

Some may argue that the framer's original intent was unclear. This couldn't be further from the truth. Recall that Thomas Jefferson, writing in The Declaration of Independence, said that we had certain inalienable rights; the right to life, liberty, and the pursuit of happiness. Recall also that Jefferson, in his original draft cribbed from Locke and wrote that we have the right to life, liberty, and property. His intent, and that of Madison and Monroe who did the heavy lifting on the constitution, is clear.

This morning, hoisted on their own petard, liberals are outraged. Yet, one must ask them, if you appoint judges that you expect to find new meaning in a "living" constitution, why be so surprised when they do exactly that?

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