Both cases will have negative repercussions for liberty that reach far beyond their specific facts. The founding fathers understood that every right we have emanates from our right to private property. In this sense, “private property” means not only the right to one’s home and land, but also the right to own the product of one’s labor. James Madison, the father of the U.S. Constitution, wrote in 1789, “A man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.”
Every right we have stems from government’s recognition that we, the people, are born with our rights intact. We own them. We have property in them. We voluntarily forfeit some of these rights to government, in exchange for protection from outside threats, the administration of justice, and the rule of law. The purpose of the U.S. Constitution, then, is not to tell us what rights we have. We’re born with the right to do as we please, so long as we don’t harm others. The Constitution’s purpose is to outline what rights we give to the government, and to firmly define the limits of government power.
Unfortunately, this isn’t widely understood. Commonly, we hear people say things like, “where in the Constitution does it say you have the right to smoke a cigarette?” Or, “where in the Constitution does it say you’re allowed to look at pornography?” James Madison worried about questions like these. He feared that if we included a Bill of Rights in the Constitution, people would eventually come to assume the rights it listed would be the only rights we have. Others felt some rights — speech, arms, etc. — were so vital as to merit explicit mention. As a compromise, they included the Ninth Amendment, which says that the enumeration of some rights should not be construed to exclude rights not enumerated. So to answer the questions above, your right to smoke a cigarette or consume pornography are both in the Ninth Amendment.
This is why the decision in Raich is so important, and so devastating. While the Supreme Court has ignored the Ninth Amendment for decades, Raich may serve as its obituary. If the Ninth Amendment doesn’t protect a man’s right to consume whatever medicine might give him relief from pain — or that in some cases could save his life — what’s left that it could possibly protect?
If the Supreme Court killed off the Ninth Amendment with Raich, Kelo in many ways represents the culmination of its complete disregard for even our explicitly enumerated rights.
Go back to Madison’s quote above. A government that doesn’t respect the title to your land is in all likelihood a government that will in time lose respect for your property in your right to speech, arms, and due process. And indeed in recent years, with help from the Supreme Court, government at all levels has run roughshod over even our explicitly enumerated rights.
With increasingly restrictive campaign laws, for example, we’ve lost the most important of our First Amendment protections — the right to criticize the people who govern us at election time. The Second Amendment has been trampled by gun control legislation. In our nation’s capital, for example, guns of any kind have been all but outlawed. The PATRIOT Act and a spate of Supreme Court Drug War decisions have rendered our Fourth Amendment protections from warrantless searches meaningless. Our Fifth Amendment right against self-incrimination has been diluted in many contexts, and outright suspended in others (drunk driving cases, for example). Many prosecutors treat its grand jury provision not as a criminal protection, but as an invitation to abuse. And, of course, Kelo wrecked the Fifth’s takings protections. There are only cursory examples. There are many more.
In this sense, Kelo’s symbolic significance is probably more damaging than its practical application. By deferring to state and local governments, who may now seize property for virtually any reason at all, the Supreme Court has announced its complete disregard for private property. Which means that America may have finally achieved Madison’s dim vision: “An excess of power” now prevails, and we’re now living under a government that neither respects our right to property, nor acknowledges the property we own in our rights.
Perhaps this isn’t the cheeriest of columns to write for Independence Day. But it’s certainly appropriate. Thomas Jefferson famously wrote that, “eternal vigilance is the price of liberty.” We obviously haven’t been vigilant enough. Coincidentally, July 4 marks not only the birth of America, but the death of two of its founders — Jefferson, and John Adams died on this day in 1826. Perhaps we should mark the date not only by celebrating America’s independence, but by working to insure that this July 4 doesn’t also mark the death of the ideas that animated its founding.