Obama’s Supreme Court Plans

Tibor R. Machan

This is just a rumor but it seems like President Obama will attempt to place Harvard University Law Professor Cass Sunstein on the U. S. Supreme Court. This idea has been aired on the Internet at The Washington Independent web site. For the time being Sustein has been tapped to head the Office of Information and Regulatory Affairs but, as the site reports, “Sunstein has also been mentioned as a potential Supreme Court pick under Obama, although a position in the administration might reduce the likelihood that he’ll move to the bench.”

This is an ominous prospect, to say the least, given that Professor Sunstein has been a constant critic of a prominent element of the American legal tradition, namely, the institution of the right to private property. The Fifth Amendment to the U. S. Constitution mentions this right explicitly when it states that “nor shall private property be taken for public use without just compensation.” Indeed, the only such taking that is permitted is “for public use,” which is to say, strictly speaking, for a use of the entire citizenry--for example, a military based, a court house, or a police station. These are the kind of facilities that qualify as public ones since their function is to serve the entire public, not certain special or private purposes.

The reason the July 2005 U. S. Supreme Court ruling in Kelo v. City of New London, CT., was such a departure from the U. S. Constitution is that it sanctioned the taking of private property of private use--the City was going to transfer Kelo’s property to some private industry that would pay higher taxes. (Nothing has been developed on that property so far, by the way!)

Professor Susntein believes, judging by the book he coauthored with Stephen Holmes, Cost of Rights: Why Liberty Depends on Taxes (W.W. Norton, 2006), that the public at large--meaning the government--owns all the wealth in the country and taxation is merely its way of leaving some of that wealth for private citizens to use as they see fit--that is to say, whatever remains in their hands once the public via government has assumed control of the wealth it supposedly owns.

This is a thoroughly reactionary view of property, given that a basic characteristic of the regime overthrown by the American Revolution as that it owned the country. In a feudal system the government--king, tsar, pharaoh, or some such ruler--owns the entire country, even its citizenry or, rather, subjects! The American Revolution was in part about rejecting this idea and affirming its opposite, namely, that it is citizens who own the wealth, privately, and have the right to hold it, trade it, or give it way as they choose. Taxation is merely a payment for government’s services, such as providing the defense of the country, its court system, its police force and the like. Everything else is private property.

Professor Sunstein, an arguably likely choice of President Obama for the U. S. Supreme Court, wants to take American back to pre-revolutionary days and affirm that it is government, not the citizens, that owns property. He joins, thus, Karl Marx and Frederick Engels who in The Communist Manifesto declared as the first job on the road to the essentially reactionary--rather than progressive--system of communism the abolition of private property.

Of course, Professor Sunstein and others who hold this position and have published prominent works advancing their case, do have arguments that need to be addressed. I am here not debating whether they are right or wrong, although I do think their position is impossible to sustain philosophically, ethically, or politically. For now, however, my aim is to make it clear to my readers that President Obama’s objective is indeed a radical change in how American is to be governed. He seems to embrace at least one of the basic tenets of socialism and communism, namely, that all property must be public and controlled by the government.

We are in for some serious changes indeed.