I Thought The Constitution Was Supposed to Protect Us From Government


by Timothy Sandefur

Did everyone see Washington Post writer Andrew Cohen's "we're from the government and we're here to help" attitude toward eminent domain? It's darkly amusing how the left is trying to spin eminent domain reform. "Oh, we think Kelo was a bad decision," they say, "but please don't start respecting property rights!" But it's rather less amusing when pundits like Cohen offer the following as their solution:

If you don't like the eminent domain rules in your state, you don't have to fight the might of the entire federal government and you don't have to bowl over the Supreme Court. All you have to do is either get elected reform candidates who pledge to restrict eminent domain laws and/or who are willing to finally rid their legislatures of the horrible influence of lobbyists.

Oh, yeah, that's all! What in the world are people complaining about? The Archie family in Mississippi shouldn't have complained about the abuse of eminent domain; they should have just raised money, organized a political party, elected representatives, lobbied, publicized, and there you go! Simple as that! And Ahmad Mesdaq; I mean, what was his problem? Asking courts to intervene! Nonsense. He should have just run for city council, put aside his business, set aside his own plans, given up the idea that the Constitution protects us from politicians, and should have just joined the "process." That's democracy, right? And if he loses, he should just shut up, because the majority is always right.

Back here in reality, of course, the judiciary has always had a special role in protecting us from majorities. Your rights should not depend on getting political support behind you. That's why they're rights. If you have to elect people to keep your house, then it's not a property right; it's a permission. As the Supreme Court has put it,

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943) (emphasis added).

Peoria Pundit also has an excellent response, as does Say Uncle.