PUBLISHED in the Washington Post, 6/9/05:
http://www.washingtonpost.com/wp-dyn/content/article/2005/06/08/AR2005060802147.html

re: Judicial Takings and Givings (Washington Post, 5/31/05)
http://www.washingtonpost.com/wp-dyn/content/article/2005/05/27/AR2005052701267.html

To the Editors:

The summary of your Editorial “Judicial Takings and Givings” (5/31) demonstrates a fundamental misunderstanding of the Constitution and the rule of law. The ruling in Lingle v. Chevron did not “return the court to a path of restraint in the creation of economic rights.” Instead, it continued the court on a path of destruction of those rights by ruling that a landlord can not decide what rent to charge tenants if a state wants to interfere.

From Due Process to the just compensation requirement of Eminent Domain to prohibition against unreasonable seizure, a fair reading of the Constitution and contemporaneous documents demonstrates that most economic rights are what our Founders would have considered natural rights. We have these rights whether the government likes it or not. Economic rights are not created by politicians and courts but are unfortunately often destroyed by them.

The Supreme Court got this wrong, the unanimous verdict notwithstanding. My suspicion is that they were simply afraid of the Pandora’s Box of challenges to other government attacks on property rights which a ruling for Chevron would have opened. It was a reasonable thing to fear, given the extent to which Uncle Sam and his cousins in each state have eroded the foundation of our free market system. Opening that box would have led to economic freedom which our country has not seen for decades. Instead we look forward to more years of jamming liberty into a dark sealed box.

[This ruling, in addition to the closeness of the vote on interstate wine shipments, adds to my concern that Kelo v. New London will go the wrong way....]