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Friday, June 24, 2005

Throw The Tea In The Harbor!

If the country doesn't insist that Congress override the Supreme Court on this one, the insurrection is inevitable. It may come through constitutional conventions, or it may come through a shooting war, but this has gone past the point of no return.

In Gonzales V. Raich, the Supreme Court ruled that Congress has pretty much unlimited power stemming from the Commerce Clause. After all, if Congress can regulate you growing marijuana in your backyard and smoking it in your living room on the basis that such behavior affects interstate commerce, all of life is economic and thus subject to Congressional legislation.

In Kelo V New London, the Supreme Court ruled that "economic development" caused by seizing one person's land and giving it to another entity who will make better use of it is a valid taking because it has a "public purpose", and the government seizing the land doesn't even have to show that the entity to whom it plans to give the property will make better use of it. In other words, as long a governmental entity puts a plan on paper, it can seize your property. Call it the decision that launched a million property seizures.

To ameliorate the effects of the decision, Stevens wrote:
We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law,22 while others are expressed in state eminent domainstatutes that carefully limit the grounds upon which takings may be exercised.23 As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate.24 This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution.
Kind of them to allow us to debate the issue, wasn't it? But the suggested solution does absolutely nothing to circumscribe Congress' power to seize your property, as long as it does so under the idea that somehow it is promoting economic development. Nothing. The scope of action provided to Congress under just these two decision that were recently released is potentially immense. This is the end of federalism.

It is time for the citizens of the United States to restore the Constitution. Our rights are being interpreted away before our very eyes. There are many economic theorists who do believe the government can make better use of your property than you can. As the Coyote blogger noted, Kos is one such:
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.). It would have sacrificed needed community power at the hands of the sort of property-rights extremism frequently displayed by right-wing libertarian types.
So it is now "property-rights extremism" to believe that Wal-Mart and Bill Gates don't have more of a right to your property than you do? Color me one of those extremists. Churches, for example, don't pay taxes. Why not build a Home Depot? Poor people and older people pay less taxes. Let's move 'em on out!

Under these two decisions alone, the Supreme Jesters have just provided Congress with an excellent retrospective rationale for moving the Cherokees out of Georgia or seizing homeless shelters. The Gang of Five may talk a fine talk, but their walk is straight to disaster. They don't protect your rights - they protect the federal government's rights. That's all these five Supreme Jesters care about any more.

As Justice Thomas wrote:
Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g., Goldberg, supra, while deferring to the legislature’s determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals’ traditional rights in real property. The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, supra, at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante, at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.
Whether the average citizen realizes it or not, the Supreme Court in this term has laid the foundation for an overwhelming incursion of federal power upon state's rights and individual's rights. It has so expanded the scope of Congressional power that no bar now remains to almost any federal measure, so long as it purports to have some economic purpose - and in both of these decisions, the Supreme Court has recorded its decision that the Court would be beyond its rights to presume to scrutinize the proposed legislative philosophy underlying such a law. A polite fiction is all that's needed.

Our country is, practically speaking, now an oligarchy. It remains to see whether this legal oligarchy will mutate into a socialist state or into a Mexican brand feudal state. As Justice Thomas pointed out, the Supreme Court's decisions have led to the result that you now have more rights under federal law to benefits granted you by the government (although none, by the way, in Social Security payments) than you do to property inherited or purchased. What foundation is there in law now supporting any economic system but Communism or Socialism, or the domination of a wealthy minority?

Nor is this decision limited to real property. This decision also extends to intellectual property, such as that incorporated in patents or copyrights. The decisions cited in Kelo V New London made that quite clear.

Other new posts (these people have written a great deal on the topic, the linked posts lead to other posts):
Mover Mike, Coyote Blog

Also posted to Blogger News Network

Comments:
Don't know if you've seen Ann's take on it yet:

http://althouse.blogspot.com/2005/06/has-court-erased-public-use-clause.html

I respect her opinion and she doesn't seem to think it's as bad as everyone else.

For whatever that is worth.
 
First of all, the Supreme Court didn't give Congress any power in this decision -- it gave power to local and state EXECUTIVE powers (zoning boards, other agencies, etc.). Congress may appropriate funds, but the executive seizes property.

Second of all, I agree that the rationale is disturbing. I haven't read the whole case yet, but I read some about it when it first made its way into the federal appellate system. I think it's a horrible idea to seize viable, non-condemned private property for another's private use. And no matter how you stretch the definition, "economic development" is private use (unless the business is actually run by the state).

I need to read this, then I may return with more comments.
 
I'm not sure Congress xcan do what you ask- I think the state legislaures can make the ruling moot.

I suspect that if we demand that of our legislators- under threat of their being replaced, states will legislate away a city's right to expropriate private property for increased tax revenue.

It's one thing if the city needs a new fire house or library and quite another to give land away to developers.
 
"What foundation is there in law now supporting any economic system but Communism or Socialism, or the domination of a wealthy minority?"

This decision reminded me of Marxism as well (I think that is what you are saying). Instead of redistributing from the richer to the poorer. We will now redistribute from the poorer to the richer.

"If the country doesn't insist that Congress override the Supreme Court on this one, the insurrection is inevitable."

Also, something I have been wondering. There is universal outrage over this decision. So what will the legislature do about it.

My G-d our courts are out of controll. Will people still want to have left wing judges on the Supreme Court.
 
Justice O'Connor is a prophet

It is happening

http://www.washingtonpost.com/wp-dyn/content/article/2005/06/23/AR2005062301786.html
 
SC&A, no, the federal government can take property as well. No action of the states can alter the federal government's interpretation of this case.
 
Boomr - because Congress has the power to legislate under the Commerce clause, it inherits this power in effect. The Executive might carry it out, but Congress would have to legislate first. Or that's my interpretation. The president usually can't initiate a regulatory scheme under the law.

Tommy - many lawyers are stupid when it comes to considering the real-world effects. Ann is usually not, but she is clearly considering the law and not the practice.

Having read the case, I think it would be very difficult to mount an effective challenge to a taking. The amount of deference shown in Kelo V New London to the taking entity is extremely broad. A private entity would have pay the costs of litigation and would have to get a restraining order from a local judge to stop the condemnation in the first place. Under this ruling, it would be quite hard to do.

The taking entity just has to have a plan. The plan could have originated with a contact from the benefitting third party. Under the ruling, the plan does not even have to demonstrate a liklihood of succeeding. They just need a plan which contemplates selling, leasing or transferring the property or the use of the property to other private entities.

It might be difficult to seize one person's house so that the local alderman could develop it, but seizing the entire block would be likely to succeed. And this is exactly the type of takings that are being executed in cities across the US.
 
I alway thought that a few economic courses should be mandatory in law school. This only stregthen my belief.
 
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