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February 21, 2005

Speaking of Court's Messing with Local Regulations

For any progressives excited about this Supreme Court getting to overrule local economic regulations in the name of property rights, maybe they should have their eye on Chevron v. Lingle instead, possibly the most important takings cases to come before the Supreme Court, yet there's been remarkably little discussion about it. The substance of the decision was to strike down a law regulating the rents charged by big oil companies to their franchise holders as an illegal "takings" under the 5th Amendment.

As this Property Rights Group notices, Kelo and Lingle are linked as to whether "courts [are] required to simply accept government assertions that it is advancing the public good." And my hard answer is yes, they are, absent clear evidence of corruption or abuse. Courts should make sure landowners are fairly compensated, but the courts are not supposed to be super-economic development agencies. Why the hell should we take their views on such economic and political questions seriously?

What is the "public good" other than the result of extensive democratic debate. Are courts now to be the philosopher kings to decide such matters? I make no bones about disliking judicial power generally, but at least in civil rights cases, there is clear history that blocking discrimination is the point of those amendments. But contentious debates on the "public good" are exactly why we have a ballot box, to fight that exact issue out every two or four years.

And we have a dynamic system of multiple levels of government, so that if a local government is acting irresponsibly, you can go to the state ballot and elect people to overturn local actions, or go to the federal government to overturn irresponsible state actions.

But the point on Lingle is that progressives fighting for constitutional "property rights" are objectively allied with the most rightwing forces in our society. They may front a case, like in Kelo with sympathetic plaintiffs, but the legal result of their success will be a slippery slope to making most humane legislation impossible-- especially with the likes of Clarence Thomas packed onto courts for the next few decades.

Posted by Nathan at February 21, 2005 01:38 PM