Ed Meese: The Property Rights Test (A landmark case may soon come before Justice Roberts)

opinionjournal.com ^ | 9/5/05 | Edwin Meese, III

[wagglebee]

Despite current hype from Senate Democrats, the landmark cases of the next five years probably won't concern civil rights, abortion or other issues that have liberals so worked up. Current court vote-counts leave little room for major shifts, no matter what the judicial philosophy of Justice Sandra Day O'Connor's replacement. Instead, I believe some of the biggest cases will deal with property rights.

Justice John Roberts may well find waiting on his desk one property-rights case potentially as momentous as the unfortunately decided Kelo v. New London. In Kelo the court gave government the right to take property from one private citizen or company and give it to another. In this anticipated case--Stearns Co. v. U.S.--the lower courts have overturned centuries of precedent, demonstrating that, when it comes to protecting private property, in Ronald Reagan's favorite maxim, government isn't the answer; it's the problem.

[wagglebee]

Few constitutional protections are less ambiguous than the requirement that private property must not be taken for public use "without just compensation." It is rooted in common law and is almost as ancient as common law itself. To guard against abuse, the Framers made these principles explicit, matching the government's blunt power to compel sale of private property with an equally blunt obligation to pay for it. When another branch attempts to shirk this duty, the Constitution requires the judiciary to defend property owners. If the Federal Circuit's decision stands, for the first time in American history the courts will have created a giant detour around this core constitutional requirement.

It's unbelievable how a right that so many of us thought would always be safe is now under attack.

[F-117A]

That's CHIEF Justice Robert!

:-)

[FortRumbull]

Unless there is a third vacancy on the court, Meese is whistling through the graveyard of deceased property rights. O'Connor and Rehnquist both were in the minority on Kelo, so if SCOTUS is going to rule on another property rights case with its current balance, the outcome would almost certainly be equally bad. Count the votes - they are simply not there unless one of the Kelo majority resigns or dies.

[wagglebee]

The past two days, the media has gone out of its way to comment on how wonderful John Paul Steven's health is. It's almost like they are trying to reassure themselves that he will be around forever. My guess is that Stevens will be gone within the year.