Having spent last week teaching about the Constitution (thanks again to these kind folks in Boise), I’m reminded of my teacher Walter Berns’s injunction to teach and study the document rather than what judges say about it. James Madison reminds us over and over again (here and here, for example) that our rights are protected more by the structure of government and of society than by any mere "parchment barriers," even if they’re, ahem, "enforced" by the judiciary.
I was talking to some friends at the pool last night (celebrating the end of swim team season--our team was sixth overall in the North Atlanta Swim Association championships, but I’ll refrain from further bragging), and the Kelo decision came up (without any prompting on my part). These middle class suburbanites--not especially political--are steamed. This morning, I was listening to our local entertainingly obnoxious radio talker on the way back from dropping my son off at camp. His guest was our county CEO, who, having apparently heard from constituents, was promising up and down not to engage in obnoxious takings (though he did make an exception for "blight," all the while denying that there is any such thing in our fair county).
The talker, who claims to be a libertarian but is apparently addicted to government by remote control, was fulminating about Senator Johnny Isakson’s press release, which didn’t go far enough for his taste, since it didn’t call for a constitutional amendment to rein the Court in. He should have preferred the "constant vigilance" recommended by a Harry Potter character whose name escapes me at the moment (my wife, the family HP expert [less than three weeks now], would know).
To wrap this up in a moderately neat package, there are, I think two good results that flow from the Kelo decision. Most immediately, it is going to be a little easier for President Bush to build support for his Supreme Court nominee. My neighbors may or may not have passionately held positions on abortion (we don’t talk about it), but they care deeply about their property rights, with regard to which the Court majority seems to them to have joined Dark Side. In the longer run, this is a proverbial teachable moment, reminding us that the real bulwark of our rights is not to be found in a courthouse anywhere, but in the willingness of citizens to stand up, not only for themselves, but for those currently most vulnerable to governmental predations. This requires the kind of sympathetic imagination urged upon us here, albeit not in the name of the same causes.