MaxedOutMama
Saturday, June 25, 2005
Kelo V New London Not A Conservative Issue
Update: What the title of this post should be is "Kelo V New London Not Just A Conservative Issue". Because it isn't. This issue crosses all the standard political and social lines. I think this case amply demonstrates just how far the progressive wing of our political society has pushed, and that it is a lot further than the traditional Democrats would prefer. End Update.
Oraculations makes his feelings known; he wants people to cut off money donations to the Republicans until they act. However, it's necessary to get the Dems on board for this one to get anything done, and that really shouldn't be too difficult. Howard notes how the MSM largely approves of the decision. He also points to Kim du Toit, who predicts a shooting war:
Patterico is arguing vociferously that this decision indicates that all of us in the Coalition of the Chillin' are idiots. I am contemplating his arguments seriously. Right now I would just like to point out that President Bush's next nomination can't change this decision, since Rehnquist voted against it and Rehnquist is the one who will be replaced.
I agree with Patterico that we need to appoint judges who aren't willing to interpret away various rights of the people that were explicitly written into the Constitution; it is just that I believe at this time that restricting our activity to pursuing that goal will accomplish nothing. Furthermore, I feel that being forced to vote for Republicans solely on the basis that they will appoint constructionist judges is rather undemocratic and fundamental proof of the pernicious effect of the magical mutable Constitution as brought to us by the Supreme Court. There are other remedies than having to vote for Republicans, some of whom are worse statists than a lot of Democrats. Neither party is monolithic, and it is folly to vote as if either were.
Patterico also writes:
One of the commenters on Patterico's post disagrees, writing:
For someone who disagrees with my ideas and is arguing the case on principle, see No Oil For Pacifists. I won't try to rebut most of his arguments now because I want to study them throughly.
I will limit myself to the observation that if Federalism requires permitting the Supreme Court to announce that entire clauses in the Constitution mean nothing, then I want nothing to do with Federalism. However I think this is a mistaken interpretation of Federalism. Federalism might mean, and probably should mean, that amendments which were originally passed to limit federal power should not be construed to override state powers. However what happened in Kelo is not that the court announced it could not exercise its power against the state. Instead the court announced that it had the power to decide that the Fifth Amendment forbade such a taking, but did not choose to because the words "public use" in the Takings Clause of the Fifth Amendment did not really mean the "use of the public", but rather any "public purpose", which is of course a vastly different thing.
In doing so, the Supreme Court did not set forth a principle of respect for the sovereign powers of state governments but instead changed the meaning of that clause of the Fifth Amendment, and it did so for the federal government as well. This type of tactic is what has destroyed federalism, which balances the powers of the state and the federal governments into different spheres, and relies upon the separation of powers set forth in the Constitution to do so. Of course, the Supreme Court has consistently discarded any such troublesome verbiage from the Constitution.
Believe me, this five-member coalition of the Supreme Court has less than no respect for the principles of federalism. And if you don't believe me, this is an excerpt from oral arguments, in which Breyer makes it clear that he is thinking about Congressional powers and not just state powers:
Oraculations makes his feelings known; he wants people to cut off money donations to the Republicans until they act. However, it's necessary to get the Dems on board for this one to get anything done, and that really shouldn't be too difficult. Howard notes how the MSM largely approves of the decision. He also points to Kim du Toit, who predicts a shooting war:
Yesterday, with their disgusting, un-Constitutional ruling, the Supreme Court took the country further down that road to where the bullets will eventually, and with absolute certainty, begin to fly. So when some poor schmuck shoots a state employee driving a bulldozer, and people ask: “How did this tragedy happen?” you can just point towards the Supreme Court.Well, that would be a good reason to become a political activist on this one issue, at least. Democracy is supposed to suppress violent conflict by motivating people to exert political pressure to take care of their interests rather than sniping at the police who are just carrying out orders. I do believe a substantial majority of people in this country can be convinced to agitate for blocking on this decision on various levels. Among the organizations filing amicus curiae briefs on behalf of the plaintiffs were the NAACP/AARP/South Jersey Legal Foundation jointly, the American Farm Bureau Federation, and Develop, Don't Destroy Brooklyn. This issue has spawned a very broad coalition which may well change the face of US politics for a generation. The issue is, to put it bluntly, populist.
Patterico is arguing vociferously that this decision indicates that all of us in the Coalition of the Chillin' are idiots. I am contemplating his arguments seriously. Right now I would just like to point out that President Bush's next nomination can't change this decision, since Rehnquist voted against it and Rehnquist is the one who will be replaced.
I agree with Patterico that we need to appoint judges who aren't willing to interpret away various rights of the people that were explicitly written into the Constitution; it is just that I believe at this time that restricting our activity to pursuing that goal will accomplish nothing. Furthermore, I feel that being forced to vote for Republicans solely on the basis that they will appoint constructionist judges is rather undemocratic and fundamental proof of the pernicious effect of the magical mutable Constitution as brought to us by the Supreme Court. There are other remedies than having to vote for Republicans, some of whom are worse statists than a lot of Democrats. Neither party is monolithic, and it is folly to vote as if either were.
Patterico also writes:
If you disagree with yesterday’s decision, it looks as though your problem is not so much with the decision per se, but with the law leading up to it. If you really think the Supreme Court needs to do something in this area, you have to be willing to allow the Court to reconsider a fairly long line of precedent, simply because you think it’s wrong....In the comments there is a hot argument about whether the parallel with Roe is correct. IMO, Patterico is right that both Raich and Kelo follow a line of jurisprudence and that correcting this line probably requires undoing or limiting precedents. This is exactly the argument that Justice Thomas argued in his dissent, which I highly recommend reading. And this is the final reason why I don't think that trying to elect all the Republicans we can so that we can get them to nominate really conservative judges is a real solution. The Constitution itself has become a document that means much less than the words of the judges who interpret it; you either have to nominate strict constructionists over a period of ten years or so, or people must now consider amending the constitution. Again, see Thomas's dissent:
If you are a Roe v. Wade supporter, this will cause you consistency problems, since the only conceivable principled justification for keeping that poorly reasoned decision around is respect for precedent. And the Roe precedent is only 32 years old; the troubling precedents in the “public use” area go back over 50 years.
The same thing goes for the recent medicinal marijuana decision, by the way. For all the blog-driven criticism of Justice Scalia’s position in that opinion, the majority’s argument was mostly an application and slight extension of pre-existing law. The problem lay more with the precedents than with the decision itself.
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. Ante, at 1-2, 8-13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them.Through enlightened jurisprudence they have argued themselves in circles so that now entire amendments mean little. The encroachments have not just been against property rights, but also for free speech, the separation of powers, search and seizure (e.g. RICO), and the Commerce Clause (which now means everything).
One of the commenters on Patterico's post disagrees, writing:
In any case, you’re right that Kelo and Raich were both significant extensions on precedent, not at all required by s.d. alone. The Court would have been reversing no earlier decision in simply toeing the line on the standards they ended up strectching in each case. Consider O’Conner questioning “what good is Lopez?” in light of Raich. Someone said we should go back to Lochner. I disagree, but maybe we should go back to Lopez. Ah, the good old days…But this is also true for several other constitutional issues. My guess is that we will not be able to stop this magical mutable constitutional transmogrifier until the citizens of the US wake up and start forcing amendments to override the Supreme Court's bait-and-switch technique. Only this will now redress what is now a very twisted balance of powers.
Both decisions reduce major limits on government power to a speck of verbiage leaving us wondering what the heck “interstate commerce” or “public use” ever meant, other than “everything”.
For someone who disagrees with my ideas and is arguing the case on principle, see No Oil For Pacifists. I won't try to rebut most of his arguments now because I want to study them throughly.
I will limit myself to the observation that if Federalism requires permitting the Supreme Court to announce that entire clauses in the Constitution mean nothing, then I want nothing to do with Federalism. However I think this is a mistaken interpretation of Federalism. Federalism might mean, and probably should mean, that amendments which were originally passed to limit federal power should not be construed to override state powers. However what happened in Kelo is not that the court announced it could not exercise its power against the state. Instead the court announced that it had the power to decide that the Fifth Amendment forbade such a taking, but did not choose to because the words "public use" in the Takings Clause of the Fifth Amendment did not really mean the "use of the public", but rather any "public purpose", which is of course a vastly different thing.
In doing so, the Supreme Court did not set forth a principle of respect for the sovereign powers of state governments but instead changed the meaning of that clause of the Fifth Amendment, and it did so for the federal government as well. This type of tactic is what has destroyed federalism, which balances the powers of the state and the federal governments into different spheres, and relies upon the separation of powers set forth in the Constitution to do so. Of course, the Supreme Court has consistently discarded any such troublesome verbiage from the Constitution.
Believe me, this five-member coalition of the Supreme Court has less than no respect for the principles of federalism. And if you don't believe me, this is an excerpt from oral arguments, in which Breyer makes it clear that he is thinking about Congressional powers and not just state powers:
JUSTICE BREYER: Justice Douglas says there that as long as it's an objective within Congress and legislature's legitimate grant of power, they can do it, I mean, as long as there's a -- so why does there have to be a limit within that broad limit?In other words, these fivejustices are willing to concede that there might be some circumstances in which a taking might be improper, but they have no real idea what that might be and intend to defer to any legislative scheme which, in their minds, always have public purposes. This is why Thomas commented they had deleted the two words "public use" from the constitution - and he is right. And if Carl ever hopes to see federalism reestablished, the prerequisite will be a Supreme Court which will respect the Constitution as it is written and not as the Supreme Court thinks it should be written. I doubt very much that even a Senate composed of 100 Republicans will produce that result.
MR. BULLOCK: Well, Your Honor, the limit is that there cannot be takings for private use.
JUSTICE BREYER: Of course, there can't, purely. But there is no taking for private use that you could imagine in reality that wouldn't also have a public benefit of some kind, whether it's increasing jobs or increasing taxes, et cetera.
That's a fact of the world. And so given that fact of the world, that is law, why shouldn't the law say, okay, virtually every taking is all right, as long as there is some public benefit which there always is and it's up to the legislature.
MR. BULLOCK: Your Honor, we think that that cuts way too broadly.
JUSTICE BREYER: Because?
MR. BULLOCK: Because then every property, every home, every business can then be taken for any private use.
JUSTICE BREYER: No. It could only be taken if there is a public use and there almost always is. Now, do you agree with that, or do you not agree with my last empirical statement?
Comments:
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Well I don't think we'll ever get anywhere just because everybody is trying to find a way to blame the other side for decisions they don't like. I have already ran across several sites claiming that this was an action of the "conservative" supreme court.
Whatever it is, when Scalia, Rhenquist, Thomas and O'Connor are the dissenting, it's not the conservatives doing it. For that same reason I don't understand the idea of keeping money from Republicans. Unless you like the decision and want more of it.
Whatever it is, when Scalia, Rhenquist, Thomas and O'Connor are the dissenting, it's not the conservatives doing it. For that same reason I don't understand the idea of keeping money from Republicans. Unless you like the decision and want more of it.
# posted by 
: 7:52 PM
: 7:52 PM
Tommy and Ulysses,
No, I don't like this decision and don't want more of it. And I don't think keeping money from the Republicans is the right way to approach the problem.
Ulysses, thanks for your comments. I am thinking very hard about the best strategy. I agree with you about the court, but it's not just conservate judges we need, but a certain type of conservative judge. I am unsure we can get that.
The point is to win the day, and I don't think we are going to win by defining a narrow strategy. But the ability of the Republicans to get judges who believe that the constitution as it was written means something and that they should be true to it is of paramount importance.
Still thinking.
No, I don't like this decision and don't want more of it. And I don't think keeping money from the Republicans is the right way to approach the problem.
Ulysses, thanks for your comments. I am thinking very hard about the best strategy. I agree with you about the court, but it's not just conservate judges we need, but a certain type of conservative judge. I am unsure we can get that.
The point is to win the day, and I don't think we are going to win by defining a narrow strategy. But the ability of the Republicans to get judges who believe that the constitution as it was written means something and that they should be true to it is of paramount importance.
Still thinking.
M_O_M:
Just to be clear:
1) I don't want to turn the Bill of Rights over to the states. Were the phrase "public use" unambiguous, I would come out as you do.
2) But it's not, and I'm reluctant to void (say) urban renewal using the private sector or condemnation and privatization of state-owned utilities. The legislature (or town council) is better suited to determine what path will best benefit their citizens.
3) I don't any distinction between Kelo and Midkiff; to a lesser extent, same for Berman. Sure, all three cases could be wrong -- Justice Thomas says so -- but are you arguing that Kelo somehow is worse?
Just to be clear:
1) I don't want to turn the Bill of Rights over to the states. Were the phrase "public use" unambiguous, I would come out as you do.
2) But it's not, and I'm reluctant to void (say) urban renewal using the private sector or condemnation and privatization of state-owned utilities. The legislature (or town council) is better suited to determine what path will best benefit their citizens.
3) I don't any distinction between Kelo and Midkiff; to a lesser extent, same for Berman. Sure, all three cases could be wrong -- Justice Thomas says so -- but are you arguing that Kelo somehow is worse?
Carl, sorry I've been so busy I haven't had time to properly answer you. I wanted to revisit Midkoff and explain why I think the court crossed a line in Kelo and at least by this weekend I will get a chance to do that.
I am aware of the procedural problems (and I think you are right that they should be resolved in favor of scope of action), but I can't agree that this should be done at the expense of fundamental rights so deeply rooted in the common law that they were only incidentally touched upon in the Constitution itself. Amendment 9 should not be forgotten either - by enumerating certain rights the people wished to make it clear that others were not denigrated.
I suppose I am an originalist to some extent, but that is because the Constitution can be modified if necessary (and it has been). Allowing the words themselves to become magically mutable and elastic only pitches the whole thing out the door. That's more than dangerous - it strikes a blow at our entire system of government.
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I am aware of the procedural problems (and I think you are right that they should be resolved in favor of scope of action), but I can't agree that this should be done at the expense of fundamental rights so deeply rooted in the common law that they were only incidentally touched upon in the Constitution itself. Amendment 9 should not be forgotten either - by enumerating certain rights the people wished to make it clear that others were not denigrated.
I suppose I am an originalist to some extent, but that is because the Constitution can be modified if necessary (and it has been). Allowing the words themselves to become magically mutable and elastic only pitches the whole thing out the door. That's more than dangerous - it strikes a blow at our entire system of government.
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