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Judge John Roberts and Property Rights

Ross Kaminsky - 7/20/2005

There are three main points regarding the nomination of John Roberts to fill the Supreme Court vacancy left by Sandra Day O'Connor. In reverse order of importance:

1. It's going to be very hard for the Democrats to even try to block someone who is so clearly qualified and who passed so resoundingly on his appointment to the D.C. Circuit, the second-most important court in the country. The Democrats' views on the judge are essentially irrelevant unless they legitimately believe he will not do his job, something impossible to believe of John Roberts.

2. President Bush sent a message by this appointment: 'I am the President and this choice is up to me.' He essentially said that not only is he independent enough to pick someone that the Democrats could not possibly have suggested during their "consultations", but he's independent enough to ignore his wife's public comment that she wanted him to choose a woman. This is a President who wants the world to know he's going to act based on his principles, generally ignoring his opponents and when necessary, even ignoring his friends.

3. It is a cause for concern that Roberts may have implied he would uphold Roe v. Wade because it is the "settled law of the land". But it's not a concern for the reasons that the Christian right would say. In fact, I'm strongly pro-choice and I wish there were a right to abortion that could be found in any reasonable reading of the Constitution. But I don't believe there is - this was the Court coming to a conclusion first and then torturing logic and law to get there. However, the right to an abortion isn't really the concern here. If a judge will uphold this bad decision because it is already "settled law", then it leaves serious question as to whether he would give too much deference to other prior cases which are clearly wrong and which erode the core freedoms of our Republic. There are laws, as well as general Supreme Court policies, screaming to be overturned or revised.

- Kelo v. New London was the worst Court decision of my lifetime, and the most dangerous erosion of the very foundation of our society. If a person's very home is not safe from the grasping hands of government, no private property is safe. There is no rational reading of the Constitution which could support the recent 5-4 ruling, and if there were ever a ruling which demands to be overturned, it's this one.

- McCain-Feingold campaign finance restrictions are clearly unconstitutional restraint on political speech. Furthermore, these un-American laws have not even accomplished their goals of reducing the effect of money on politics. Like water hitting a rock in a river, money finds a way around obstacles.

- The Supreme Court made a disastrous error around the time of the New Deal by explicitly saying they would use only "minimal scrutiny" when examining legislation which Congress claims is to regulate interstate commerce. The Commerce Clause is massively overused, such as in the ridiculous decision in Gonzales v. Raich (the recent medical marijuana case) in which the Court ruled that the Federal government could prevent a sick woman from growing and using her own marijuana for medical purposes. Ms. Raich was neither buying marijuana from anyone, nor selling it to anyone. Relying on the precedent from Wickard v. Filburn (1942), the court ruled that although it is not interstate commerce the action can effect the national market and can thus be regulated as commerce. I wonder, is there an "national market" recognized and enforceable by the government in a substance they have made illegal? In any case, the government's saying what people can or can not produce on their own property for their own use is a direct attack on property and states rights. It is not merely a matter of allowing or not allowing the use of marijuana in general. It is also a matter of whether this should be decided by states or Washington. After all, whoever makes law is the one who has power.

Notice that each of these cases comes down to a property right: the right to one's house free from arbitrary taking, the right to spend one's money on a legal activity, and the right to make productive use of one's land. In each case, the Court has attacked Americans' property rights which are the foundation of our economy and our society.

Roman law understood the critical nature of the right to use property as integral to the right to own that property. John Locke, the (relatively) modern founder of Property Rights understanding recognized that the right to own property is nearly meaningless without the right to use it. And even if you had never read the history of Roman law or of the rights basis for English common law, both of which I would expect our Supreme Court Justices to have read, the premise is simply logical and the Court's actions repeatedly illogical.

With rulings are as bad as these, it is imperative that we have judges who are not so reverential of precedent that they refuse to overturn decisions which violate the letter and the (original) intent of the Constitution. I hope that Judge Roberts realizes that refusing to reexamine a bad decision is hardly different from making that bad decision himself. I would rather sacrifice Roe v Wade and return to a Court that upholds a strict reading of the Constitution which must include true protection of the rights to own and use property than to keep the freedom allowed by Roe and continue to lose every other important freedom we have.