The Key Issue for the Court Isn’t Abortion

August 15, 2005 • Commentary
This article was originally published in Investor’s Business Daily on Aug. 15, 2005.

Two recent infamous Supreme Court decisions — one on property rights, the other on federalism — may serve as wake‐​up calls for those who believe in limited government and individual liberty. For too long conservatives who understand the Enumerated Powers doctrine and the role the Constitution plays in limiting the power of government have allowed the religious right and Planned Parenthood to control the debate over the future of the judiciary in America. The litmus test for any judge must always be his or her view on Roe v. Wade, as though abortion and abortion alone should determine who sits on the federal bench.

Now, abortion is a serious issue — one in which I’ve always believed neither side gave due credit to the valid arguments of the other. And I am a pro‐​choice advocate (up until the fetus is viable outside the womb) who nevertheless believes Roe was wrongly decided, giving a police power to the federal government that the Constitution denies the federal government. But the fact that the abortion debate so controls the debate over judicial philosophy is unfortunate. There are more important issues out there, such as federalism and private property rights, the cornerstones of our liberty.

The decision that provoked the loudest protests was Kelo v. City of New London, where in a 5‐​to‐​4 vote the Supremes ruled it was fine for a local government to use the frightening power of eminent domain, not for public use as stated plainly in the Fifth Amendment, but for private gain that would generate added tax revenues for the city. Fifteen private residences are to be destroyed to make room to an office building and upscale housing for corporate executives. Never mind if your house has been in the family for generations, you’re out of luck. As Justice Sandra Day O’Connor put it in a stinging dissent, the fallout of this decision will not be “random.” The little guy will get hit for the benefit of the wealthy and politically powerful — in virtually every instance.

The good news with Kelo is that the reaction has been so strong that federal legislation has been introduced that would prevent the federal government from using economic development as a rationale for employing eminent domain. It would also apply to states and localities that planned to use federal funds for their development projects. Good for Congress if they pass this legislation. They are overdue to do something right. Further, the Institute for Justice, which fought the good fight in the Supreme Court, is taking the battle to the states where, it is hoped, state legislatures or the voters will reassert the primacy of private property in America. The first fruits of this effort came last week, when the Alabama legislature voted to restrict eminent domain takings by local governments. Lawmakers in dozens of states are considering similar protections.

The disappointing federalism case was Gonzales v. Raich, in which the Supremes, by a 6‐​to‐​3 vote, ruled in a California medical marijuana case that the federal War on Drugs trumped a state law that allowed the sick and dying to ease their pain through the use of marijuana. This shameful decision undermines the essence of federalism. Governance within our constitutional framework is to occur primarily at the state and local level. The national government is there to protect our liberties and to leave the states pretty much alone.

Granted, federalism has taken a good beating for some time — at least since Franklin Roosevelt threatened to pack the Court if it didn’t go along with his extraconstitutional initiatives. But this ruling came from the Rehnquist Court, the one that breathed new life into federalism in Lopez, telling Congress it didn’t have the power to tell the people of Texas what kind of gun laws they had to have. So, the Raich decision was a real blow to those of us who believe in federalism.

Justice Antonin Scalia voted with the majority in Raich, prompting my colleague Roger Pilon to call him a “fair‐​weather federalist.” Scalia evokes federalism when it suits him, but failed to recognize federalism when it was staring him in the face. That’s unfortunate, because, without Scalia’s assent, both cases would have had the so‐​called liberal bloc voting in lockstep and the conservative justices in principled opposition. His yea helped to obscure debate about the future of the Court — something the hearings on Judge John Roberts’ nomination will hopefully help clarify.

The truth is that liberals prefer having the debate over judicial philosophy center on abortion rights, which they view as peripheral to the debate over the proper role of government. They will not win an open debate on property rights (many low and moderate income Americans were outraged by the Kelo decision), nor do they want to resurrect the debate over federalism, which they thought the New Deal had put to rest.

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