Recognition of a "right that cannot be enforced" is exactly what the Court has often done in the field of property rights. As I noted in my last post, the Court - especially in recent years - has often held that individuals are entitled to protection for property rights under the Fifth Amendment's Takings Clause and other constitutional provisions. However, they have heavily deferred to the government in defining the scope of those rights, often effectively negating them as meaningful protections for individuals targeted by the state. For example, the Court has allowed government nearly unlimited authority to define the scope of what constitutes a "public use" justify condemnation of private property under the Fifth Amendment. Entrusting the political branches of government with the authority to define the scope of a constitutional right is much like giving wolves the power to determine how much access they will have to the chicken coop. The chickens - especially those who lack political influence over the wolfpack - are unlikely to last very long.Which is why it's so important to elect Representatives in Congress who understand the importance of those rights.
Tuesday, March 18, 2008
Rights that cannot be enforced...
Ilya Somin makes a great point over at The Volokh Conspiracy that even a favorable ruling in Heller vs. DC does not mean that our rights will necessarily be protected:
Posted by Grant Bosse at 7:55 PM