Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

The Key Issue for the Court Isn't Abortion
Cato Institute ^ | December 1, 2005 | Edward H. Crane

Posted on 12/01/2005 11:09:54 AM PST by yoe

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.

This article was originally published in Investor's Business Daily on Aug. 15, 2005.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Extended News; Government; News/Current Events; Politics/Elections
KEYWORDS: abortion; eminentdomain; federalism; kelo; privatepropertyright; totalitarianism; wodllist
Navigation: use the links below to view more comments.
first 1-2021-22 next last

1 posted on 12/01/2005 11:09:55 AM PST by yoe
[ Post Reply | Private Reply | View Replies]

To: yoe

The "cornerstone" to our liberties are not federalism and private property but the right to life. This is why abortion is the main concern to those of us who are pro-life for the nominees to the Supreme Court.


2 posted on 12/01/2005 12:53:38 PM PST by conservative blonde (Conservative Blonde)
[ Post Reply | Private Reply | To 1 | View Replies]

To: yoe

"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."

I totally agree with this. Abortion is being used as the cover, while this dirty little trick of kicking people out of their homes occurs.


3 posted on 12/01/2005 1:23:46 PM PST by Mrs. Darla Ruth Schwerin
[ Post Reply | Private Reply | To 1 | View Replies]

To: yoe

40 million plus dead seems a pretty fair issue to be deciding any nominee for SCOTUS.


4 posted on 12/01/2005 4:14:04 PM PST by Aussie Dasher (The Great Ronald Reagan & John Paul II - Heaven's Dream Team!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: yoe
And I am a pro-choice advocate (up until the fetus is viable outside the womb)

Yes, kill them when they are even less defensive...very noble indeed! - sarc

5 posted on 12/01/2005 4:41:16 PM PST by frogjerk (LIBERALISM - Being miserable for no good reason)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Mrs. Darla Ruth Schwerin

Funny thing about Kelo: every lib I know hates that decision.


6 posted on 12/01/2005 5:55:52 PM PST by Sans-Culotte (Meadows Place, TX-"Tom DeLay Country")
[ Post Reply | Private Reply | To 3 | View Replies]

To: yoe

Lost me at "I'm a pro-choice advocate"....

Would anyone listen to the opinions of someone who opened with "I'm a pro-slavery advocate"?

And the brutality of slavery pales in comparision to the death and destruction visited on innocent Americans by the abortion holocaust.


7 posted on 12/01/2005 6:01:20 PM PST by EternalVigilance
[ Post Reply | Private Reply | To 1 | View Replies]

To: EternalVigilance
Would anyone listen to the opinions of someone who opened with "I'm a pro-slavery advocate"?

You're right, this is like saying:

I'm a pro-slavery advocate as long as the slave is caught as an adult and is not mistreated.

8 posted on 12/01/2005 7:11:27 PM PST by mwilli20 (temporarily tagged out...)
[ Post Reply | Private Reply | To 7 | View Replies]

To: conservative blonde

I disagree. Abortion is less important than private property rights. The reason is simply that abortion wont and never will be outlawed in all states and hence is simply a waste of time for practical reasons. In my opinion off course . Others are free to have different priorities.


9 posted on 12/01/2005 9:06:44 PM PST by newfarm4000n (God Bless America and God Bless Freedom)
[ Post Reply | Private Reply | To 2 | View Replies]

To: EternalVigilance
Would anyone listen to the opinions of someone who opened with "I'm a pro-slavery advocate"?

And the brutality of slavery pales in comparision to the death and destruction visited on innocent Americans by the abortion holocaust.

Are you kidding me ? life for a slave was like a life of torture and then death . I'd rather be aborted than face that any day.
10 posted on 12/01/2005 9:12:18 PM PST by newfarm4000n (God Bless America and God Bless Freedom)
[ Post Reply | Private Reply | To 7 | View Replies]

To: Sans-Culotte
Funny thing about Kelo: every lib I know hates that decision.

That's because this particular liberal decision was made only for the liberal elites of the party, not the common man. This decision was bought and paid for by someone.

11 posted on 12/01/2005 9:12:46 PM PST by Centurion2000 ((Aubrey, Tx) --- America, we get the best government corporations can buy.)
[ Post Reply | Private Reply | To 6 | View Replies]

To: newfarm4000n

A slave can find freedom.

A murdered child's entire life has been stolen from them through violence, with no hope of reclaiming it.

Where there is life there is hope...


12 posted on 12/01/2005 9:22:44 PM PST by EternalVigilance (Stop the Bleeding First!!)
[ Post Reply | Private Reply | To 10 | View Replies]

To: newfarm4000n

How can you sign yourself "God Bless America and God Bless Freedom" and say that abortion is not the most important problem our country faces? If we don't have the right to life, we don't need to worry about property or anything else. God will not bless us as long as this culture of death is hanging over our system of laws.


13 posted on 12/02/2005 12:52:29 PM PST by conservative blonde (Conservative Blonde)
[ Post Reply | Private Reply | To 9 | View Replies]

To: yoe

The Senate seems to be more protective of the "Commerce Clause" than anything else.


14 posted on 12/02/2005 1:02:42 PM PST by oldbrowser (The U.S. Senate is a quagmire.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Sans-Culotte

Did you ask them if they would hate the decision if it were the Nature Conservancy taking over the residents' homes?

NC uses very similar tactics, but it's for the environment, ecologically sound, etc. Libs seem to have no problem with taking private land to make "public."


15 posted on 12/02/2005 1:49:27 PM PST by Ghost of Philip Marlowe (Liberals are blind. They are the dupes of Leftists who know exactly what they're doing.)
[ Post Reply | Private Reply | To 6 | View Replies]

To: newfarm4000n
It's important to the article and to the general libertarian (CATO) view of these issues. The author cites the original intent of Constitution to argue against federalism. But he happily turns a blind eye to the foundational concepts that elicited the Constitution "...right to life, liberty, and the pursuit of happiness."

You take away that first item of the foundational principles, everything else in the Constitution is the ultimate waste of time.
16 posted on 12/02/2005 1:52:08 PM PST by Ghost of Philip Marlowe (Liberals are blind. They are the dupes of Leftists who know exactly what they're doing.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: conservative blonde
God will not bless us as long as this culture of death is hanging over our system of laws.

Why do you hate America so much ? I mean look at how mane LIVES were saved by the military in Iraq ? ...imagine had Saddam been allowed to stay in power . Is that not Pro Life ? But I guess lives of Iraqi's don't count huh ... I believe when a woman chooses to have an abortion god will judge her not the entire country which didn't make her do it. I believe in INDIVIDUAL RESPONISIBILITY for ones actions and mistakes.
17 posted on 12/02/2005 6:35:59 PM PST by newfarm4000n (God Bless America and God Bless Freedom)
[ Post Reply | Private Reply | To 13 | View Replies]

To: newfarm4000n
Legal abortion is the sin of America. Our Supreme Court ruled it legal. Citizens should have rose up in defiance at the time but there was not a whimper. We have suffered because of our adherence to evil. What has that got to do with saving lives in Iraq? Iraq doesn't honor abortions. In fact the Muslim religion considers abortion an evil. By the way, when you write about God please capitalize the "G."
18 posted on 12/03/2005 9:38:24 AM PST by conservative blonde (Conservative Blonde)
[ Post Reply | Private Reply | To 17 | View Replies]

To: conservative blonde

By the way, when you write about God please capitalize the "G."

are you serious ?


19 posted on 12/04/2005 3:43:32 PM PST by newfarm4000n (God Bless America and God Bless Freedom)
[ Post Reply | Private Reply | To 18 | View Replies]

To: newfarm4000n

Very serious, why wouldn't I be?


20 posted on 12/04/2005 5:21:17 PM PST by conservative blonde (Conservative Blonde)
[ Post Reply | Private Reply | To 19 | View Replies]


Navigation: use the links below to view more comments.
first 1-2021-22 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson