Who says property rights don't deserve 'strict scrutiny'?

Who says property rights are not "fundamental rights?" Go ask the Chinese peasants.

China seals town after police kill protesters.

During the demonstration, thousands of people gathered to protest the amount of money the government offered as compensation for land to be used to construct a wind-power plant. Police started firing into the crowd, killing as many as 10 people, mostly men, and wounding up to 20, villagers reached by telephone said Friday.

In American law, people are always suing the government. It's one of the things which distinguishes us from, say, China. And one of the key issues — tediously 'procedural' as it might at first appear — is whether or how much the courts "defer" to the judgment of the government agency, be it local, state or Federal.

Now there are several levels of deference. Issues which involve civil liberties — freedom of religion, speech, assembly or racial segregation etc etgc — trigger what is called "strict scrutiny." The Court takes on itself the right to examine every aspect of the law very closely. But when it comes to property rights — and this issue is at the heart of Kelo as well as many other important cases in American history — the court simply asks whether there is some mere "rationality" to it. If the law seems to have a "rational relationship to a legitimate public purpose," then that is enough and the law is upheld.

But with the "fundamental rights" the court will look far deeper. It will second-guess the government. It will ask whether the method adopted by government to further the legitimate public purpose are also the "least intrusive means." And if it thinks that there is a simpler, less intrusive way to get the job done, it will overturn the law.

This distinction is a fundamental concept in American jurisprudence and a very important one in American politics. In Kelo, the Court majority said "hands off." This is a property matter and we don't have to look very hard. I have been troubled by this distinction ever since I learned of it in law school. I don't wish to overturn it wholesale, as it is a basis of the modern regulatory state, which overall I think has been extremely beneficial. But we shouldn't be so sure that — ask the Chinese peasant or Mrs. Kelo — property rights are not a "civil right," and are indeed 'fundamental' to life, liberty and the pursuit of happiness.