The worst decision since Dred Scott

When phrases and ideas become popular, they also become mindless. I suppose there is no way to avoid this. It's a logical offshoot of an essential human, conservative concept: If something works, you keep using it. A secondary offshoot is that it's often easier to just keep using it until it doesn't work rather than figure out beforehand when it does not apply.

The "Nazi" slur is an obvious and trivial example. One of my favorites is "the worst case since Dred Scott." The last time I remember this being used commonly was Bush v. Gore, but some fool Congress critter will raise it whenever there's a court decision they don't like.

What's fabulous about it is that Plessy v. Ferguson is a much worse case. Dred Scott is predictable; as easy as it is to take potshots at it, the fault lies with the Constitution and the society that defined, implicitly, anyway, humans as property. Scott may or may not have been rightly decided given the assumption that humans are property, but to pretend that it was wrongly decided because humans cannot be property is to evaluate it according to a fantasy world that never existed.

Plessy, on the other hand, was the product of pure prejudice. Understandable, perhaps--judges are the product of their time and all--but there could be no doubt at that time that all humans were citizens entitled to equal protection, and yet the government allowed its laws to be applied differently for different classes of citizens. That's an abomination, and it's contained within the case. It's also an abomination that humans can be property, but that's the proposition Taney was given at the outset.

What Scott did do, of course, is help crystallize national general and political sentiment against slavery. In that sense (although I doubt it), it's possible that something similar has happened with the Kelo decision to which LAGuy has already linked. For those who don't know, Kelo is the U.S. Supreme Court's 5-4 decision allowing eminent domain for private development. It's the logical outcome of New Deal, Sunstein jurisprudence: There is no property; there is only good government planning. We should be thankful it was 5-4 and not 6-3 or 9-0.

This issue has hit the commentariot, both liberal and conservative, but of course that's not such a big deal. Most of those people (most of us?) are talking to each other. But people in general care about local property rights. They show up at public meetings, to screw their neighbors and to get screwed, to be sure, but they show up.

Everything depends upon the future, and which way eminent domain is used, but it's reasonably possible that the supreme court's 70-year socialist bent might have gone one bridge-to-the-future too far. People in general, and then their political leaders (which is to say, political followers) might then begin to fight for their property rights. If so, then it finally might be true that we've seen the worst case since Dred Scott.