Thursday, June 23, 2005

Liberalism Repudiated

It's official. None of us live in a Liberal republic anymore. Welcome to the Socialist Republic of the United States of America ruled by politburo members Stevens, Kennedy, Ginsberg, Souter and Breyer. Official Motto: "Waterfront property for party members only."

Today the Court decided the government can take away anything you own, even if all they want to do with it is give it to another (wealthier) individual. Oh, you have to first give it window dressing and claim it will "produce a public benefit", but in the end it winds up the same.

"You're a poor person who happens to live in a home that yuppies want? Well you are shit out of luck my friend, because the yuppies have a CONSTITUTIONALLY ENSHRINED RIGHT to take your home away from you (with the help of the government, of course.) Why? Well, bucket of scum poor people like you don't pay as much in taxes as yuppies do. Go and die under an overpass somewhere."

Makes you proud to be an American, don't it?

In his opinion Justice Stevens goes out of his way to prove beyond a doubt his is the worst kind of jurisprudence imaginable. Get this:

Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.

As for the first proposition, the City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U.S., at 245 ("A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void"); Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403 (1896). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a "carefully considered" development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, 467 U.S., at 245, the City's development plan was not adopted "to benefit a particular class of identifiable individuals."

Really? Really? REALLY? That's funny, because I can quite easily identify a particular "class of individuals" that benefit from this taking. They are ALL WEALTHIER THAN THE POOR PEOPLE WHO HAVE JUST HAD THEIR HOMES TAKEN AWAY FROM THEM. It is amazing that Stevens can't identify rich people as an identifiable class. Most Americans don't have that difficulty. Justice Steven's riposte (if such it can be called) that this is a "carfeully considered development plan" and so must be bowed before, has to be just about the dumbest legal "principle" ever proclaimed by the Court. Now our courts have to decide what is and what isn't a "carefully considered" plan? What complete and utter bullshit. It will never happen. The courts will simply defer to the State whenever they say "We did a study that said X." I know it, you know it, and Justice Steven's and his cronies know it.

This decision represents a complete repudiation of the political philosophy that underlied the founding of this nation. Nobody who lived in the first 175 years of our country's existence would recognize a single thing about the political philosophy motivating Stevens and Company. You know the whole "Life, liberty and the pursuit of happiness" thing? Well, Justice Stevens today has said, "F*ck that shit" and a whole lot of our fellow countrymen will applaud him for least the wealthier ones.

The rest of us realize a right we used to enjoy against the rich and powerful has just been taken away by a pen stroke.

Justice Thomas dissented:

Long ago, William Blackstone wrote that "the law of the land postpone[s] even public necessity to the sacred and inviolable rights of private property." 1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause, ante, at 9-10 (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use." [Emphasis Added]

I cannot agree. If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O'Connor powerfully argues in dissent.

So, the State can do whatever it wants to your property as long as it isn't irrational. (Real comforting, eh?) I must have missed that part of the Constitution.

Justice O'Conner dissented:

Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:

"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority . A few instances will suffice to explain what I mean . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).

Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded-i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public-in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property-and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment.

I don't care how much of a Democrat you are, if you care about Liberalism at all you should be advocating more "conservative" (and therefor more Liberal) justices. If not, you should come forward and admit to being the socialist you without a doubt are.


Anonymous said...

What a terrible decision.

It's like a reverse (or more like perverse) socialism. Rather than take from the rich and give to the poor to spread the wealth, which most left-wing socialists would support, it's take from the poor and give to the wealthy. Either way, it's socialist in that the power over wealth in the country is ultimately determined not by the individual, a hallmark of liberalism and capitalism, but by the state.

Unfortunately, this decision will be hailed in DC because it will pave the way for the city to take over land for the new baseball stadium without paying market value. But it's just a subsidy for the wealthy future owners of baseball, on top of the subsidy for the building of the stadium itself.

I hate when I hear cities talk about the need for economic development to clean up blighted areas, and then use the eminent domain to run out the people who most want to see, and would most benefit from, new economic development in the area. If an urban area is blighted, there's probably a couple of identifiable problems with solutions that don't involve taking away the property of responsible landowners- 1) rundown/abandoned properties-hey, just condemn them, level them, and auction off the land- when you let the property go to seed, you give up a lot of your rights to keep it; 2) crime- maybe spend more money to have a strong police presence; 3) neighborhoods cut off by roads and interstates; 4) bad schools; 5) corruption; etc.

I know this is somewhat simplistic, but cities can do a lot short of claiming eminent domain to fix blighted areas and encourage economic development, and when they do have to use eminent domain, it should be done judiciously, and only to build the necessary infrastructure to allow businesses to thrive. Ironically, the more they use ED, the more they lessen the influence of market forces, which will ultimately be the determining factor whether these development projects survive and prosper. But to take away any chance of property owners to benefit from the increased market interest in the "new neighborhood" is just reprehensible. It's like, "well, we let your area go to shit, but we're going to fix it. Too bad you'll be long gone before that happens."

Republican or Democrat, liberal or conservative, this was a bad day for America.


The Iconic Midwesterner said...

I expected the decision to come down this way, but seeing the "rationale" put forward by Stevens was still jarring. It was as if every horrible thing ever said about "corprate America" was suddenly enshrined as "good and right" in the Constitution. And by the so-called "liberal" wing of the court to boot.

I really hope that Rank-and-File Democrats rise up to complain.

It is funny. The old liberal complaint against the conservative notion of "equality before the law and no further" didn't go far enough to protect the have-nots in our society. But today these so-called liberals have thrown out even the barest bones of legal egalitarianism.

Will anybody notice?

Anonymous said...

"Will anybody notice? "

Almost assuredly not. That's the problem with the protection of minority (numerical, not necessarily ethnic) rights, that most people don't care about the impact of something such as eminent domain because it doesn't affect them. Indeed, in most ways it helps them. For example, when they use ED to build the DC baseball park, nobody's going to care about the displaced property owners who have to sell below premium. They'll just make their merry way down to the ballpark and wonder, "what's the big deal, this is good for the city." (whereas I will knowingly be a hypocrite when I go to the stadium). That's why I feel that courts, even more so than legislatures, have to be viligant in protecting minority rights. Because the majority will trample on them any chance they get, not necessarily out of spite, but because they can. This is why I believe it's so important to err on the side of individual rights when interpreting the constitution (no matter what your method of analysis).

It's the same reason I'm such a big advocate of the separation of church and state. When that wall is breached through such things as prayer in school or the posting of the ten commandments in schools and public buildings, and to a much lesser extent, the "under god" in the pledge of allegiance, those whose religious beliefs are impacted by such actions are ignored by the public at large who can't understand what the big deal is, because hey, we're a christian nation. But that public doesn't get that it can be a big deal to a Jew or a Muslim or a Jehovah's witness forced to conform to a societal religious standard far different than their own. And they need the protection of the courts. (And I'm not looking to start a debate about the separation of church and state- that's just an example. I could pick several other examples of the infringement of rights where the majority doesn't care.) So to see the decision in Kelo, it pisses me off.

You know I'm not an advocate of strict construction or original intent, but it's not like I don't think the opinions of the Framers don't matter or aren't important or even relevant today. I mean, for god's sake, did the majority forget about the federalist papers?

Even though I tend to be libertarian, I know that I'm not always consistent. And in practice, I do think that there does need to be a balance between individual rights and the need for the state to provide for the public good, and that minority rights need not trump the greater good for the majority of people. But if ever there was an example of a nice existing balance between the rights of the individual and the need of the state to conduct its business, the doctrine of eminent domain, as we intro to poly sci teachers taught it for so many years,was one such example. You own property, that state needs it for a public use, like building a road or public RR tracks, the state could take your land with fair compensation. But to change that to some vague, legislative definition of public good (and god knows how dangerous it can be when you let legislatures define the public good), throws that balance out of whack to the detriment of indivdiual rights.

"The old liberal complaint against the conservative notion of "equality before the law and no further" didn't go far enough to protect the have-nots in our society. But today these so-called liberals have thrown out even the barest bones of legal egalitarianism."

You know, it's going to be really interesting when an ED case/situation comes up where poor black folk (and they don't even have to be black) get bumped for some corporation or megamall by a white, Republican mayor. (not that this probably hasnt' happened many times already). And self-righteous liberals will correctly be up in arms about the trampling of these people's rights. What will be interesting is to point out to them that the liberals they champion on the Supreme Court allowed this to happen, while the "evil" justices of Scalia and Thomas tried to stop such abuses. Meanwhile, the wealthy Republicans who support the action will find themselves saluting those bleeding heart liberals they bitch about so much.

Except for the poor bastards who will be displaced, it will be fun to watch.