http://www.foxnews.com/story/0,2933,161422,00.html
For Independence Day, Supreme Court Slams Founders
Saturday, July 02, 2005
By Radley Balko
This past term, the Supreme Court handed down two rulings that will
have a catastrophic effect on our personal freedom.
In Gonzales v. Raich, the court ruled that the Constitution's clause
to "make regular" interstate commerce permitted federal agents to raid
the home of a sick woman and confiscate the six marijuana plants she
was growing for her own medication — all in a state whose population
had overwhelmingly voted to legalize medical marijuana.
In Kelo v. City of New London, the court found that the phrase "public
use" in the Fifth Amendment allows local governments to snatch land
from law-abiding people, and sell it off to wealthy developers.
Both cases will have negative repercussions for liberty that reach far
beyond their specific facts.
The Founding Fathers understood that every right we have emanates from
our right to private property. In this sense, "private property" means
not only the right to one's home and land, but also the right to own
the product of one's labor.
James Madison, the father of the U.S. Constitution, wrote in 1789: "A
man is said to have a right to his property, he may be equally said to
have a property in his rights. Where an excess of power prevails,
property of no sort is duly respected. No man is safe in his opinions,
his person, his faculties, or his possessions."
Every right we have stems from government's recognizance that we, the
people, are born with our rights intact. We own them. We have property
in them. We voluntarily forfeit some of these rights to government, in
exchange for protection from outside threats, the administration of
justice and the rule of law.
The purpose of the U.S. Constitution, then, is not to tell us what
rights we have. We're born with the right to do as we please, so long
as we don't harm anyone else.
The Constitution's purpose is to outline what rights we give to the
government, and to firmly define the limits of government power.
Unfortunately, this isn't widely understood.
Commonly, we hear people say things like, "Where in the Constitution
does it say you have the right to smoke a cigarette?" Or, "Where in
the Constitution does it say you're allowed to look at pornography?"
James Madison worried about questions like these. He feared that if we
included a Bill of Rights in the Constitution, people would eventually
come to assume the rights it listed would be the only rights we have.
Others felt some rights — speech, arms, etc. — were so vital as to
merit explicit mention.
As a compromise, they included the Ninth Amendment (search), which
says that the enumeration of some rights should not be construed to
exclude rights not enumerated. So to answer the questions above, your
rights to smoke a cigarette or consume pornography are both in the
Ninth Amendment.
This is why the decision in Gonzales is so important — and so
devastating. While the Supreme Court has smothered the Ninth Amendment
for decades, Gonzales may serve as its obituary.
If the Ninth Amendment doesn't protect a man's right to consume
whatever medicine might give him relief from pain — or that in some
cases could save his life — what's left for the amendment to possibly
protect?
If the Supreme Court killed off the Ninth Amendment with Gonzales,
Kelo in many ways represents the culmination of its complete disregard
for even our explicitly enumerated rights.
Go back to Madison's quote above. A government that doesn't respect
the title to your land is in all likelihood a government that will in
time lose respect for your property in your right to speech, arms and
due process. And indeed in recent years, with help from the Supreme
Court, government at all levels has run roughshod over even our
explicitly enumerated rights.
With increasingly restrictive campaign laws, for example, we've lost
the most important of our First Amendment (search) protections — the
right to criticize the people who govern us at election time.
The Second Amendment (search) has been trampled by gun-control
legislation. In our nation's capital, for example, guns of any kind
have been all but outlawed.
The Patriot Act (search) and a spate of Supreme Court "Drug War"
decisions have rendered our Fourth Amendment (search) protections from
warrantless searches meaningless. Our Fifth Amendment (search) right
against self-incrimination has been diluted in many contexts, and
outright suspended in others (drunk-driving cases, for example).
Many prosecutors treat the grand-jury provision not as a criminal
protection, but as an invitation to abuse. And, of course, Kelo
wrecked the Fifth's protection against property-taking. These are
really only cursory examples. There are many more.
In this sense, Kelo's symbolic significance is probably more damaging
than its practical application. By deferring to state and local
governments, who may now seize property for virtually any reason at
all, the Supreme Court has announced its complete disregard for
private property.
This means that America may have finally achieved Madison's dim
vision: "An excess of power" now prevails, and we're now living under
a government that neither respects our right to property, nor
acknowledges the property we own in our rights.
Perhaps this isn't the cheeriest of columns to write over Independence
Day. But it's certainly appropriate. Thomas Jefferson famously wrote
that, "eternal vigilance is the price of liberty." We obviously
haven't been vigilant enough.
Coincidentally, July 4 marks not only the birth of America, but the
death of two of its founders — Jefferson and John Adams both died on
this day in 1826, the 50th anniversary of America's independence.
Perhaps we should mark the date not only by celebrating America's
independence, but by working to insure that this July 4 doesn't also
mark the death of the ideas that animated its founding.
Radley Balko maintains a Weblog at: www.TheAgitator.com.
For Independence Day, Supreme Court Slams Founders
Saturday, July 02, 2005
By Radley Balko
This past term, the Supreme Court handed down two rulings that will
have a catastrophic effect on our personal freedom.
In Gonzales v. Raich, the court ruled that the Constitution's clause
to "make regular" interstate commerce permitted federal agents to raid
the home of a sick woman and confiscate the six marijuana plants she
was growing for her own medication — all in a state whose population
had overwhelmingly voted to legalize medical marijuana.
In Kelo v. City of New London, the court found that the phrase "public
use" in the Fifth Amendment allows local governments to snatch land
from law-abiding people, and sell it off to wealthy developers.
Both cases will have negative repercussions for liberty that reach far
beyond their specific facts.
The Founding Fathers understood that every right we have emanates from
our right to private property. In this sense, "private property" means
not only the right to one's home and land, but also the right to own
the product of one's labor.
James Madison, the father of the U.S. Constitution, wrote in 1789: "A
man is said to have a right to his property, he may be equally said to
have a property in his rights. Where an excess of power prevails,
property of no sort is duly respected. No man is safe in his opinions,
his person, his faculties, or his possessions."
Every right we have stems from government's recognizance that we, the
people, are born with our rights intact. We own them. We have property
in them. We voluntarily forfeit some of these rights to government, in
exchange for protection from outside threats, the administration of
justice and the rule of law.
The purpose of the U.S. Constitution, then, is not to tell us what
rights we have. We're born with the right to do as we please, so long
as we don't harm anyone else.
The Constitution's purpose is to outline what rights we give to the
government, and to firmly define the limits of government power.
Unfortunately, this isn't widely understood.
Commonly, we hear people say things like, "Where in the Constitution
does it say you have the right to smoke a cigarette?" Or, "Where in
the Constitution does it say you're allowed to look at pornography?"
James Madison worried about questions like these. He feared that if we
included a Bill of Rights in the Constitution, people would eventually
come to assume the rights it listed would be the only rights we have.
Others felt some rights — speech, arms, etc. — were so vital as to
merit explicit mention.
As a compromise, they included the Ninth Amendment (search), which
says that the enumeration of some rights should not be construed to
exclude rights not enumerated. So to answer the questions above, your
rights to smoke a cigarette or consume pornography are both in the
Ninth Amendment.
This is why the decision in Gonzales is so important — and so
devastating. While the Supreme Court has smothered the Ninth Amendment
for decades, Gonzales may serve as its obituary.
If the Ninth Amendment doesn't protect a man's right to consume
whatever medicine might give him relief from pain — or that in some
cases could save his life — what's left for the amendment to possibly
protect?
If the Supreme Court killed off the Ninth Amendment with Gonzales,
Kelo in many ways represents the culmination of its complete disregard
for even our explicitly enumerated rights.
Go back to Madison's quote above. A government that doesn't respect
the title to your land is in all likelihood a government that will in
time lose respect for your property in your right to speech, arms and
due process. And indeed in recent years, with help from the Supreme
Court, government at all levels has run roughshod over even our
explicitly enumerated rights.
With increasingly restrictive campaign laws, for example, we've lost
the most important of our First Amendment (search) protections — the
right to criticize the people who govern us at election time.
The Second Amendment (search) has been trampled by gun-control
legislation. In our nation's capital, for example, guns of any kind
have been all but outlawed.
The Patriot Act (search) and a spate of Supreme Court "Drug War"
decisions have rendered our Fourth Amendment (search) protections from
warrantless searches meaningless. Our Fifth Amendment (search) right
against self-incrimination has been diluted in many contexts, and
outright suspended in others (drunk-driving cases, for example).
Many prosecutors treat the grand-jury provision not as a criminal
protection, but as an invitation to abuse. And, of course, Kelo
wrecked the Fifth's protection against property-taking. These are
really only cursory examples. There are many more.
In this sense, Kelo's symbolic significance is probably more damaging
than its practical application. By deferring to state and local
governments, who may now seize property for virtually any reason at
all, the Supreme Court has announced its complete disregard for
private property.
This means that America may have finally achieved Madison's dim
vision: "An excess of power" now prevails, and we're now living under
a government that neither respects our right to property, nor
acknowledges the property we own in our rights.
Perhaps this isn't the cheeriest of columns to write over Independence
Day. But it's certainly appropriate. Thomas Jefferson famously wrote
that, "eternal vigilance is the price of liberty." We obviously
haven't been vigilant enough.
Coincidentally, July 4 marks not only the birth of America, but the
death of two of its founders — Jefferson and John Adams both died on
this day in 1826, the 50th anniversary of America's independence.
Perhaps we should mark the date not only by celebrating America's
independence, but by working to insure that this July 4 doesn't also
mark the death of the ideas that animated its founding.
Radley Balko maintains a Weblog at: www.TheAgitator.com.
). 