As Steve Hayward’s post below suggests, the Ohio Supreme Court issued its ruling today in Norwood v. Horney, one of the first cases to address the scope of eminent domain following the U.S. Supreme Court’s ruling in Kelo v. City of New London. Among other things, the Court held that economic development does not, standing alone, satisfy the “public use” requirement of the Ohio Constitution. The Court also found that “Ohio has always considered the right of property to be a fundamental right” and stated that property rights “are strongly protected in the Ohio Constitution.”

Norwood is an important victory for property owners everywhere. According to the Cincinnati Enquirer, this was “the first major eminent domain case to reach a state Supreme Court since Kelo.” It will serve as a bellwether for other states looking to protect property rights.

It would seem that President Bush’s exercise of the veto power has driven a portion of the legal academy bonkers (a technical term here meaning "feeling licensed to make outrageous and not fully considered arguments"). Rick Garnett points to the latest one. Here’s the core of the argument:

The Constitution, as interpreted by the U.S. Supreme Court for the last thirty-three years, does not recognize pre-viable embryos as “human life.” Although there has been fierce continuing debate about when constitutionally cognizable life begins, the law has remained essentially unchanged since the 1973 decision in Roe v. Wade, when the Court declared that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” The Court further concluded that the government’s interest in protecting a “potential” life is not sufficiently compelling to justify infringing the fundamental liberty to choose parenthood until the point of viability, “because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” At the point of viability, in other words, there are two lives deserving of governmental consideration and protection; prior to that time, the liberty of the already born is paramount.

***

What does all of this mean for stem cell research and President Bush’s veto? First, it means that those who donate sperm and eggs to create IVF embryos have a constitutional liberty, subject to contractual modification, to decide whether those embryos should be born – thus making them parents. They can choose to implant the embryos and attempt pregnancy, freeze them indefinitely, discard them, donate them to others for adoption, or even donate them for medical research (including stem cell research). Under the Constitution as interpreted by the Supreme Court, giving these choices to potential parents is necessary in order to honor the “liberty” protected by the Due Process Clauses. This word “liberty” is the source of our freedom to use contraceptives, avoid involuntary sterilization, and even employ IVF or other reproductive technologies in the first place. We have, in short, a constitutional right to decide whether we want to bear or beget children. And there is no such thing, constitutionally speaking, as a pre-viable “child.”

I have three immediate thoughts. First, the most sinister implication of this line of argument is that there’s a constitutional right to clone, not only for therapeutic, but also for reproductive, reasons. If I own my body and all its products (short of viability, however that may be determined by the Courts), then I can do with them what I please. If I can donate them for research, why can’t I sell them? If I can donate them for research, why don’t I have a right to use them in any form I wish for the sake of reproduction? Does Professor Foley really mean this? Is there any way of drawing a line on the basis of this argument before we reach this horrific result?

Second, the argument stretches the notion of parenthood, and the constitutional rights allegedly flowing from it, beyond all recognition (something of course already implicit and perhaps even explicit in the Court’s abortion jurisprudence).

Third, that fetuses are not "persons" in the terms of the Constitution can’t mean that legislatures aren’t permitted to define personhood and offer it some protection under law. Even if one concedes for the sake of argument that an explicit conflict between a woman’s wishes and the "interests" of her unborn child has to be resolved in favor of the woman (at least under certain circumstances), I don’t see how it follows that where the woman’s alleged rights aren’t directly implicated, a legislature can’t offer certain protections to the unborn child. Of course, with his veto, the President is part of the legislature for the purposes of his argument.

Over at Mirror of Justice, Rick Garnett calls our attention to and comments on these two posts. Geoffrey Stone’s accusation that President Bush’s veto displayed "a reckless disregard for the fundamental American aspiration to keep church and state separate" is particularly egregious, since there was nothing particularly religious about his veto message, nor is there anything necessarily religious about the position he took. I’ll let the law profs have at one another over the rest of it, but will focus as well on this particular statement, offered in response to a House-approved measure depriving the Courts of jurisdiction over Pledge of Allegiance cases:

Note that he [Missouri Republican Todd Akin] believes the state should teach children that it is God, rather than “We the People,” who gives Americans their rights.

Stone apparently believes that "we the people" are the source of our rights. I suppose he’s entitled to be a legal positivist (although I think that that’s a terribly unsophisticated position for a professor at the University of Chicago Law school to be taking), but how, then, could he object to anything of which a legally constituted majority happens to approve (including school prayer, a total ban on abortion, or, perhaps, slavery, as was advocated by a famous denizen of his state some 150 years ago). Indeed, the more I think of it, he’s not even really a simple legal positivist, but rather a mere majoritarian, since he objects to constitutionally sound vetoes that allegedly defy the will of the majority du jour. This, as Aristotle points out in The Politics, is about as far from the rule of law as you can get. And he’s teaching where?

TNR’s Noam Scheiber agrees with me. Well, sort of. A taste:

[U]nderlying the stem-cell issue is a deeper debate about the way science is changing our lives. On one side of this debate are those who believe biotechnology is mostly a force for good, and that reining it in is basically reactionary. On the other side are those more troubled by the moral and ethical questions raised by advances in biotechnology. The problem for Democrats is that the American public splits a lot more evenly on these questions than it does on the narrower question of whether to extract stem cells from discarded embryos.

While he doesn’t delve too deeply into this confusion, he does call attention to this very interesting survey.

This document contains what Democratic centrists hope will be a first draft of the 2008 party platform. You can read news stories about it here, here, here, and here, and sympathetic commentary here. If you want more, there’s always this.

A few quick observations. First, I noted that Mark Warner, who made a point of attending the YearlyKos meeting in Las Vegas, was not in Denver. Is he trying to run to the left, or simply so confident of his centrist credentials that all he has to do is shore himself up on the left? Second, the DLC worked with other Democratic groups (including the Center for American Progress and NDN) to produce this document, so that it doesn’t simply bear a "centrist" stamp. Given the price tag, and the vague promises about how they’re going to pay for it without rolling back the Bush tax cuts, that’s clear enough. Third, there’s this from a friendly commentator:

To my mind, the best way to frame the entire agenda – from domestic policy to foreign policy to values – is to emphasize a duality that is central to the American Dream Initiative: the linking of opportunity to responsibility. We need to join the American Dream to the social contract, requiring responsibility from parents (for enrolling their children in available health insurance and other programs), non-custodial dads (for paying child support), recipients of means-tested benefits (for becoming self-sufficient), and college students receiving federal aid (for giving back to their communities). Employers must be responsible in their relations with consumers and employees and accountable to them. And the commander-in-chief must be accountable when he or she deceives the citizenry, bungles wars or recovery efforts, and explodes the budget deficit.

Wooing values voters doesn’t require us to become anti-abortion or anti-gay. By embracing the social contract – the idea that in return for providing public aid, society rightly can make requirements of beneficiaries – Democrats can tap into responsibility, a value that is as deeply felt as opportunity in America. And appealing to responsibility can link the American Dream Initiative to our foreign policy critique of Republicans while partly inoculating us against a values-based attack.

While I actually like some of what I read (I had much the same experience during the Clinton Administration, though I never believed that WJC meant a word of it), I’m taking the silences into account. The responsibility talk is all fine and good, but it’s finessing the religious, moral, and cultural sides of responsibility. Perhaps they’ve been omitted for the sake of a left-tilting consensus, and can be added back for particular audiences, but anyone who focuses on health when speaking about responsibility to family is missing an important part of the picture. This is something to which I’ll be paying attention.

Ross Douthat offers a very nice tour of the horizon, reviewing a number of books aimed at striking fear in the hearts of secularists everywhere. A sample paragraph:

[T]he rise of the Religious Right, and the growing “religion gap” that Phillips describes but fails to understand, aren’t new things in American history but a reaction to a new thing: to an old political party newly dependent on a bloc of voters who reject the role that religion has traditionally played in American political life. The hysteria over theocracy, in turn, represents an attempt to rewrite the history of the United States to suit these voters’ prejudices, by setting a year zero somewhere around 1970 and casting everything that’s happened since as a battle between progress and atavism, reason and fundamentalism, the Enlightenment and the medieval dark.

Read the whole thing.

Victor Davis Hanson persuasively argues that we can better gague the success of our Middle East policy by reading the things that the terror lords are not saying and observing the things that they are not doing. Why, for example, does Hezbollah leader, Nasrallah, call for "war on every level," and complain that Israel is hitting too deep into Lebannon? Hanson also wonders:

"Why do not Iran and Syria — or for that matter other Arab states — now attack Israel to join the terrorists that they have armed? Surely the two-front attack by Hamas and Hezbollah could be helped by at least one conventional Islamic military. After promising us all year that he was going to “wipe out” Israel , is not this the moment for Mr. Ahmadinejad to strike?"

John and I rode Isabell to Philadelphia for the start of the Presidential Academy for American History and Civics. Fine teachers, fine program. The classroom was so set that a hundred yards from us was the visible cause of the country, as Flannery and Lloyd, and Lucas Morel, who is in charge of it all, explained our purpose to the fifty teachers, one from each state. I did a Podcast with Chris Burkett about the program, how it came about, and so on. They are all now in Gettysburg with Guelzo and McPherson, and then in Washington with Kesler and Williams. Check out the schedule, the readings, the faculty. Good stuff.

Peter Lawler wonders why we haven’t been discussing Damon Linker’s review of two recent books on Leo Strauss. My excuse is that I’m in South Carolina--home of E.J. Dionne, Jr.’s favorite Republican--retrieving my children from the clutches of their grandparents.