Looking Back at Kelo and More

Tibor R. Machan

Since back when the Supreme Court ruled on Kelo v. City of New London, CT—in favor of the city’s use of eminent domain measures against private owners with viable property so as to obtain more taxes from the development other private parties may initiate—there has been much consternation about just what went wrong here. Most people who prize liberty were outraged and are convinced this was yet another blow against the institution of private property rights in America. But a few have argued that actually the ruling is a victory for state’s rights because it follows the 10th Amendment which bars the federal government from making laws for states.

Well, had there been any evidence of serious concern for state’s rights by the US Supreme Court during the last several decades, I might go along with this rather legalistic, technical reasoning. However, given how little the US Supreme Court has been interested in upholding the US Constitution and its several crucial amendments, the argument cannot reasonably be taken to characterize what the court was doing. Instead, the court was doing what it has been doing a great deal of late, namely, imposing its majority’s idea of desirable public policy on the nation.

Accordingly, in Kelo the best explanation is exactly what comes first to mind. This is that the justices had no serious respect for private property rights and favored government power over individual rights. That this has been the trend ever since FDR tried to pack the court and failed (but found that he didn’t really need to pack it since those on the court would accommodate his grab for power) is indisputable. The court, in other words, has become nearly fully politicized and as far as the constitution is concerned, few on it give a damn. They are so few, in fact, that it is reasonable to say that the US Supreme court cares not a whit about the US Constitution any more.

While we are on the subject of the US Constitution, it is worth noting that a great many conservatives have been bellyaching about how Roe v. Wade was decided very badly because, well, there is simply no place in the US Constitution where one can find a right to abortion. This right, they claim, is pure invention, as is the right to privacy that served to guide some justices in Griswold v. Connecticut and in the Texas sodomy case, which many conservatives also find very bad law.

However, all this ignores the Ninth Amendment according to which people retain all kinds of rights not enumerated in the US Constitution. So, in fact, it is by constitutional authority that justices may look for rights outside the constitution itself. And if there is no enumerated power of the federal government to regulate or ban something, it is perfectly reasonable to conclude that the constitution, via the Ninth, affirms many, many rights not listed therein and bars government—including one supported by the majority—from meddling.

What should be the focus of those who are upset about Roe v. Wade is not whether the constitution contains explicit reference to a right to abortion—it does not need to. But if in fact prior to the 24th to 27th weeks of pregnancy a human being exists in a pregnant woman’s womb, then there cannot be a right to abortion. That’s because there cannot be a right that contradicts another right. In another words, either the pregnant woman has the right to choose to either continue or terminate the pregnancy, or there is a human being inside her that has the right to life. One or the other, period. And that is what’s troubling about Roe v. Wade, not any supposed absence of an explicitly mentioned right to abortion in the US Constitution. (There is no explicitly mentioned right in the US Constitution to sing, or dance, or write novels, or travel or to do umpteen millions of other things that human beings do indeed have the right to do and government has absolutely no constitutional authority to regulate or ban!)

It is often thought and said that these issues are too complex for ordinary folks to grasp, so let’s leave them to legal scholars, jurists, constitutional experts, and so forth. That’s wrong. The US Constitution was crafter for us all, not just for a few. Just because some people are appointed to deal with it full time does not disqualify the rest of us from considering the debates surrounding the document.

In my own travels and talks to hundreds of people around the country I have found many who are very well versed and reflect very sensibly on this subject and I want to encourage even more people to do so. Constitutional government is endangered because of the politicization of courts by people who really do not like the US Constitution at all. These people aren’t only dissatisfied with one or another matter but they hate having government’s hands tied at all. This must be firmly resisted and that resistance must come from the citizenry now, since most of the experts are in fact in favor of all this governmental power grab.