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Thursday, June 23, 2005Personal Property Rights: 1776 - 2005It's hardly hyperbolic to call this one of the saddest days in the history of the United States. MORE: From Rob, of all people. And some thoughts from a lawyer (and fellow Bear-Flagger) at Balls and Strikes. UPDATE: Instapundit says this is bad for Bush: A lot of conservatives -- especially the small-government, libertarian-leaning kind -- are already deeply unhappy. This may cause them to either withdraw from politics, or at least lose vigor in supporting the Republicans.I'm sorry, I wasn't aware that libertarians were a herd slobbering morons. Explain to me why there would be a libertarian backlash against conservatives after the court's three staunchest conservatives - Rehnquist, Scalia, and Thomas - dissented? Just because a conservative happens to be sitting in the Oval Office at the time? I suppose he's to blame for the weather as well? If anything, this should energize libertarians to get behind Bush's future SCOTUS nominations. But it won't, because twitchy libertarians can't leave well enough alone. Instead all we're getting more tired threats from certain libertarian circles to the effect of "we're taking our ball and going home". These people are as sensitive as Andrew Sullivan... UPDATE: Ok, Insty linked this, so you've probably seen it. But shit man, that's good stuff. I can't believe I didn't think of that. UPDATE: Interesting reaction from the left, who were just yesterday seething over the concept of “enemy combatants”, for fear that such a status could be used by the government to impose authoritarian rule (forget that it’s never been used in such a manner, nor could it ever be). Now, when the courts hand the government the power to literally seize people’s livelihoods with no cause and offering no legal recourse, what do we see? Celebration. Comments:This could hurt Bush, if used properly against him, but not for the reason Reynolds suggests. Follow the money. What was Bush's one successful business venture? (hint: the Angels just took three straight from them). What is the only reason that venture was successful? (Hint: two words, beginning with E & D). This is something he shouldn't touch with a ten foot pole. Good point Will. Still, that’s good reason to attack Bush, but not justification for a split in the libertarian/conservative coalition. You're kidding about the "celebration" part, right? Read the comments. A lot of them actually get it. This is about well-connected creepos paying pennies (relatively speaking) in campaign donations to strip property from smallholders. You're right. The fact that the republican party has been highjacked by the religious right is a much better reason for a split between libertarians and conservatives. And this isn't exactly the end of property rights. The Constitution lays out the floor. States can still ratchet up property rights if they wish. Especially states in the West, that have the initiative process (which I loathe, but that's another issue). Worse than the decision is the language used in the opinion. The following is stolen from Betsyspage.blogspot.com Here is what John Paul Stevens said in the majority opinion in yesterday's eminent domain decision. The court should not "second-guess" local governments, Stevens added, noting that "[p]romoting economic development is a traditional and long accepted function of government." Think of all the times that liberal judges are quite willing to second guess local governments in cases involving criminal rights, redistricting of electoral districts, regulations of private behavior, or questions of federalism. Suddenly, when it comes to violating poor individuals' property rights, they discover the beauty of local governments' decisions. It is amazing how often liberals are funny without intending to be or understanding that they were. Yeah, that second guess language would be damning, if that's in fact what he said. Of course, it's not, and that comment was completely removed from it's context. Here's exactly what Stevens said: Just as we decline to second-guess the City's considered judgments about the efficacy of its development plan, we also decline to second-guess the City's determinations as to what lands it needs to acquire in order to effectuate the project. "It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch." (my emphasis). What he's saying is that THE court, the Supreme Court, is not going to second guess the local governement's decision. Whether the the taking is for an community benefit is a question of fact for a local trial court. It's not a question of law for an appellate court. Stevens recognizes the role of the lower courts in determining whether the taking is for a public benefit when he says "Once the question of the public purpose has been decided...[the] plan rests in the discretion of the legislative branch." So yeah, Betsy completed misinterpreted what Stevens said. Although in her defense, it wasn't particularly phrased well in the Washington Post article that she was quoting. Which isn't to say this is a good decision, but it's not the end of the world that people are making it out to be. To add: I think the phrase "considered judgements" in the quote above lends credence to my point, and should have been bolded as well. As in, the judgements have already been considered at a lower level. "You're kidding about the "celebration" part, right?" Why would I be kidding when the guy who wrote the fucking post is celebrating the decision? If I intedned to link to the comments, I would have linked to the comments. Why would I be kidding when the guy who wrote the fucking post is celebrating the decision? First, I wouldn't necessarily characterize that post as a celebration. Here's what the diarist said: As first glace, you may think that giving private homeowner property to a private corporations is a bad thing. And it very well might be in many cases. However, if the Court had ruled differently and NOT allowed local governments to do this, it would have been a disaster for local governments to build for the community (including when the purpose is to help the environment, build affordable housing, create jobs, etc.). I wouldn't characterized that as a celebration, but reasonable minds may differ. To me it looks more like someone saying this has the potential negative effects, but it also perserves some of the positive aspects of emminent domain. But I think what Rob was getting at was that you characterized that as the reaction from "the left", when in fact it was the reaction of one diarist on Dkos, whom most of the commenters seemed to disagree with. If you're going to say that this one guy represents the monolithic "left", even when a ton of other people on "the left" are disagreeing with him right there on the very same post, then that sort of blows aways your characterization. In fact, there are many on the left who were somewhat disappointed in the decision. If I said that "the right's" reaction to Oklahoma City was that they were disappointed that McVeigh didn't murder the editorial board of the NY Times based on what one nutcase said, there would probably be a lot of people on the right taking me to task for that. Of course, there's also a huge difference between one anonymous diarist on Dkos and a best selling 'conservative' author. I'm not trying to incite anything here, but I think we all need to be careful with labels. I may be misreading his comments, but William seems to be making the argument that federal courts have no authority to rule on eminent domain cases brought by local governments. That’s ridiculous. Ruling whether increased tax revenues can justly be considered "public use" under the Fifth Amendment is exactly the realm of the federal courts. Finally: why "of all people"? I'm a strict literalist when it comes to reading the Constitution. (That goes, by the way, equally to due process for people stuck in Gitmo as it does for smallholders screwed by their local bought-off governments.) This decision guts yet another part of that document and effectively cedes Article IV Section 4 as a dead letter. That is, a state can now have a totalitarian style of government and the Federal government refuses to do anything about it. I'm inclined to agree with the commenters who say that this just proves the liberal wing of the Court only cares about extending government power. but William seems to be making the argument that federal courts have no authority to rule on eminent domain cases brought by local governments. That's not what I'm saying. I'm saying that in the "second-guessing" comment, Stevens is saying that the issue has basically already been "considered" and decided. They're not going to reconsider that decision. That doesn't mean that any local government can waltz in and codemn any piece of property. It mean that the Court is not going to substitute it's judgement of what is a public benefit for what the lower courts decided. Perhaps I'm mistaken, but wasn't the thrust of this case the issue of condemning property and turning it over to a private interest, as opposed to condemning property and taking possession by the government (which is already well settled)? Quite frankly, it surprises me that many on the right are so up in arms about this. You'd think the privatizers would be all for it. Rob: It was nothing about your political affiliations - I was just alluding to the fact that you don't generally blog on such issues. Will: I was under the impression that the "thrust" of this case was that the seizure of this property in no way served the public good (at least I believe that was the gist of Kelo's argument). It was just a way for the city of New London to increase tax revenues. But I'm not a court watcher, so I could be way off base. I'd need to look into it deeper, but I think New London's argument was that the jobs, tax revenue, etc. was for the public good. Kelo's argument, I imagine, was that expanding the definition of public good to include that means that would give carte blanche to the local government to decide what constitute's a public good (whereas it used to be something more limited, like a park or some other place to be used by the public). I still think a lower court could make a factual determination that something like this isn't in the public good and would be OK. I may be misinterpreting the decision though. I haven't had a con law class in 5 years. |
