Conservatives on The March for Property Rights


by Timothy Sandefur

Columnist Phylis Schlafly writes in Human Events about the campaign against the abuse of eminent domain. Schlafly makes one especially important point:

We don't expect the Supreme Court always to defer to the legislative process. We do expect the Court to implement the text of the Constitution as written, and that means defending our constitutional right to private property even when that requires knocking down a legislative action.

This is especially important to keep in mind because many conservatives unfortunately believe that the Kelo decision was "activist" or "writing law from the bench," and that courts should defer to legislatures more than they do. In fact, Kelo demonstrates why courts should be active—and should invalidate even some of the things the majority approves of, when those things violate individual rights and the Constitution.

Unfortunately, even Schlafly herself seems to fall into the mistake of thinking that the problem in Kelo was an "activist Court." She writes, for example, that "we have every right to criticize and work to overturn wrong decisions made by supremacist judges." That's true, but the Court in Kelo acknowledged that fact. Even the majority opinion in that case says "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline."