Hysteria and Democracy

I think I can fairly claim to have been one of the first to denounce the Supreme Court's atrocious decision in Kelo v. New London. In fact, I overreacted:

I want a different litmus test. I want at least one Senator, preferably a Republican, to announce that he will not support any candidate who will not declare an intention to reverse Kelo. Who will do such a thing?

Glenn Reynolds, proposing questions to ask John Roberts in today's New York Times, expresses a similar sentiment in more measured language:

2. Justice Joseph Story wrote in 1833 that "since the American Revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A and transfer it to B by a mere legislative act." Was Story wrong? Or was the Supreme Court wrong this year when it ruled in Kelo v. the City of New London that a government had the right to take property for the use of private developers?

The Kelo decision is harmful to society and contradictory to the plain language of the Constitution: bad legislation and bad interpretation combined in a tidy package of bad law. But, contrary to my earlier words and to Mr. Reynolds's, this does not make it one of the most pressing judicial issues of our day.

By way of comparision, consider the Tobacco Trust Treaty of 1998. You haven't heard that name before [because I just coined it], but you have heard of "the tobacco settlement" or "the tobacco deal". My name for it, however, is the right one, highlighting the fact that it is a treaty [whose signatories are States, in violation of the Compact Clause of the Constitution], and that it creates a Tobacco Trust, a competition-suppressing agreement to benefit the existing Big Tobacco companies.

The Tobacco Trust Treaty represents nothing less than the foundation of a shadow government within the confines of the United States. It is not a large government by our current standards: its annual budget [$20,000,000,000 or so] is less than 1% of that of the constitutional government. It is parasitic on the constitutional government for enforcement of its laws. In thinking of this shadow government, it is instructive to compare with the European Union. Both, despite their creation through the mechanisms of democracy, have an intrinsic "democracy deficit" stemming from the lack of accountability to the populace of voters.

Kelo is a blip, a ruling less than three months old whose backlash has already been more influential than the ruling itself. This is not to say that the battle for meaningful property rights is not worth fighting, and seeing through to a thorough victory. But the Tobacco Trust Treaty is now over seven years old, and there has been little effective protest or action against it. A few lonely souls have carried on the fight: see here, here, or here. They deserve publicity and public support, and they will need it.

Bashing Kelo is fashionable, and easy. Fighting the Tobacco Trust is hard, easily forgotten... and far more important.