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Posted on 12/20/2006 6:59:54 PM PST by JTN
At least he doesen't have to pay for Jets season tickets!!1
" Something too many lawyers and people in government have forgotten."
I suspect not for long...
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Another excellent post, Vicomte, and one I agree with fully.
Ed
Worse than that - they're often working for the democRATS!
logical result of a horrendously bad ruling.
Yes, the repercussions of Kelo are being felt.
Yes, land is being taken.
But the question must be understood correctly, and faced head on: is the control of land within a state's boundaries a States' Rights issue, for the STATE to decide, or is it a Federal law issue, for the Federal Government to decide?
That's it. That's all that Kelo is. Kelo is a decision that the Federal Government - the courts - do NOT control state land law. The States do. And it is the States, using inherent State powers, that are confiscating land. The Federal Government is not taking any land. The Federal Government, in the person of the Supreme Court, has said that this is a States' Rights issue - the STATES decide this.
So, that is the issue at the heart of it.
Do you want the Federal Government to control the land law of the States? Yes or no. If you want the Federal Government to determine what taking private land for private use by eminent domain is a purely Federal concern, then Kelo needs to go. If you think the STATES are the ones under the Constitution who determine land use within their borders, then Kelo is for you.
What you cannot have is States' Rights without land confiscation, because States' Rights have always meant local, State control, and the States have generally been quite corrupt and subject to control by powerful local economic interests. If you want a rule that says that private land can't be taken BY THE STATES for other private use, which is to say to overrule Kelo, then what you are calling for is the Federalization of land policy in America.
Me, PERSONALLY? I say that the Federal Government SHOULD set the limit on eminent domain, because in this area, as in so many others in our past, State Government has once again shown itself to be incredibly corrupt and under the control of the most powerful local economic actors. The only way to stop these perpetual abuses of landowners, by STATES taking away land and giving to the cronies of perpetually corrupt State and Local Government, is to take the power away from the States and concentrate it in the inefficient and easier to see Federal Government.
Of course, that is not what the Constitution says. The Supreme Court RESPECTED the whole idea of States' Rights in the Kelo decision. Where most conservative Americans fall off the turnip truck is in the absurd and counterfactual belief that States Rights means more individual rights. It never has meant that. States Rights means control of fiefs by local economic powers who would not have the same power on the national level. "Local control" means that instead of having one law for everybody, local powerbrokers can set special laws for themselves in localities. The most corrupt governments in America have ALWAYS been the town and city governments, with the state governments following right behind as quite corrupt. The LEAST corrupt government in the US has always been the Federal government. There is nothing new hear. Of course, the Federal government itself is big, sprawling, wasteful and inefficient. ANd powerful, and tends to impose rules that localities don't like. Ergo the impassioned arguments for states' rights that we have heard for centuries now.
But Kelo is the other side of States' Rights. When States really have the sort of power States' Rights advocates claim for them, this is what they DO. This is what they ALWAYS HAVE DONE. Remember "Boss Hogg" in the Dukes of Hazzard? That is what "local control" and States Rights in America have MEANT, as far as government goes. Also, remember "Mississippi Burning"? That, too, is what States Rights has always meant in America. It means that governments are like the local Homeowners' Association, and they ACT like it.
What you can't have is a system of states' rights where the states AREN'T corrupt and DON'T cater to the economic interests of the most powerful in the State. Federalizing things dilutes that power. A good-sized business can tell Port Arthur what to do, and the sort of local politicians who run zoning boards are ALWAYS affiliated with the developers' lobby. A mega business can tell a medium sized state what to do. But even Bill Gates is nowhere near big enough to tell the Federal Government what to do.
So, it's a pretty straightforward question.
Which do you want? The Federal Government setting the rules for everybody, and setting high taxes, or the State government taking your land if they want to. The naive position is that Federal Government is BAD, but State government is good. Actually, American State government has always been terriffically bad, and the way that the states are acting now that Kelo has clearly established their sovereign power is what States do.
So, which is more important to you? The principle of limited Federal government and States Rights, or the principle that private property cannot be taken by eminent domain for private use? For me, it's easy: private property is the more important issue. But that MEANS Federalizing property law, and saying to the States that the Federal Constitution trumps state law, once again. It means concentrating more power in the Federal Courts, and taking power AWAY FROM state and local government, who right now have that power, under the Kelo decision. Once again we are treated to a feast of what "State Power" REALLY MEANS in America, and once again we learn, to our disgust, that we actually love the idea of Federally IMPOSED rights, which pare back the power of the states, rather than leaving the States with the full measure of power that they were originally intended to have.
It's either Federalization of land law or States Rights. States Rights MEANS Kelo. Which do you love more, your homestead, or the idea of limited federal government. Because if Kelo is reversed, it will be the Federal govenment clipping the wings of the states and taking powers away from the states, but protecting individuals. I am all for protecting the rights of individuals, but in America that has always meant taking power AWAY from local and state governments - which is PRECISELY WHERE the greatest abuses of individuals in America has always happening - and transferring it to the Federal Government, as inefficient and bloated and unresponsive as it is. Federal unresponsiveness at least has the virtue of providing a status quo, even if the status quo is the product of inertia and not conscious policy.
Kelo empowers the states.
It sounds like you really don't want the states empowered on land law, now that you see that what states will DO with that power is to steal land.
I agree.
The Federal Government, alone, has to set the rules for eminent domain, and impose those rules on all of the states and all of the cities. It's the only way to keep the states and cities, who have always been corrupt and always will be under our system, from taking your house. Of course, to set a Federal eminent domain rule MEANS judicial activism that finds an abstract human right in homesteads in the Constitution, and INTERPRETING a Constitution that was originally intended to limit to the Federal Government to instead allow the Federal Government to pre-empt, again, and take over areas that the Constitution was originally understood as having left to the states.
Overturning Kelo and establishing a federal constitutional rule against eminent domain takings private by state and local governments is the landholders equivalent of Roe v. Wade. It is reading rights and powers into the Constitution that are not there, and weren't intended to be there, to limit the states.
Ultimately, all that really matters is the goodness or badness of the thing being federalized. Roe v. Wade was not BAD because it took power away from the States. It was bad because abortion is bad. Kelo was not GOOD because it respected the inherent sovereignty of states to set land law within their borders, as they always have. Kelo is bad because it makes everybody insecure in his home and property.
Note that to get rid of Kelo, you have to do PRECISELY what the Federal Courts did in Roe. The Courts have to simply declare, by fiat, that the Constitution MEANS that the Federal government can move in and tell the states what their land law has to be, because of abstract "property rights". From a strict constructionist or originalist's viewpoint, Kelo was DEAD RIGHT as a Constitutional decision.
The original Constitution, of the Founders, PERMITTED powerful state governments to sweep aside smallish private landowners in favor of larger interests in the States.
Kelo perpetuates that, and is correct under the Constitution. But here, the Constitution sucks, because it lets states do something so odious it's intolerable, and the states ARE taking private property left and right. So, we have to stop it. That's really the bottom line. We have to stop the states from doing this. I suppose that one way to stop them is for the people in every state to vote in laws that say "NO", but that only works in the 23 states that have ballot initiatives, and even then it doesn't work in those states where the arrogant and corrupt state governments (we should always assume that state governments are arrogant and corrupt - all governments are - and local and state governments are the worst of the lot in America, the most corrupt) simply ignore what voters pass in ballot initiatives.
Bottom line is that to protect property rights, you need a national standard. The only way to get that national standard is judicial activism: the Supreme Court has to use the same sort of lawmaking power that it did in Roe v. Wade, which conservatives hate, to protect private homesteads. Otherwise, the Founders left us a Constitution which lets Boss Hogg take your house, and he WILL if he can get money out of it.
This is one of those beautiful cases where political principles and philosophies of government come into direct collision and honest people who think clearly realize that they have to decide between two things they don't like:
on the one side, States Rights and State Power as the Founders' Constitution left it...which means that corrupt states can and will take your house for their cronies.
OR Judicial Activism that federalizes land law by interpreting the Constitution not strictly or originally, but as a "living document" intended to protect private rights against the states (which is certainly not true as an original intent matter), and having Federal Courts stop states from stealing your house by fiat - just like Roe.
The tension this sets up we can call Roe v. Hogg.
I suppose somebody will try to say I'm wrong, and that sweetness and light are on the side of states' rights, properly interpreted, yadda yadda yadda. But that's BS.
It's pick your poison. Which do you love more, the original intent of the Constitution (which means Kelo), or your house (which means Roe)?
You're right, I think. Jeffers said it best:
Ave Caesar
No bitterness: our ancestors did it.
They were only ignorant and hopeful, they wanted freedom but wealth too.
Their children will learn to hope for a Caesar.
Or rather--for we are not aquiline Romans but soft mixed colonists--
Some kindly Sicilian tyrant who'll keep
Poverty and Carthage off until the Romans arrive,
We are easy to manage, a gregarious people,
Full of sentiment, clever at mechanics, and we love our luxuries.
Why would Kennedy want to overturn any aspect of Kelo? He was the traitor who joined the libs on that one. O'Connor was in the dissent with Thomas, Scalia, and Rehnquist.
Accurate and correct again...nice thinking.
Good post. Well said, and all too true.
I wonder, though, if they'll finally find a way to rebel when the muzzies attempt to start rolling out sharia here?
There. MUCH more accurate.
bump
This link has the answers to both of your questions.
Bottom line is that to protect property rights, you need a national standard. The only way to get that national standard is judicial activism: the Supreme Court has to use the same sort of lawmaking power that it did in Roe v. Wade, which conservatives hate, to protect private homesteads. Otherwise, the Founders left us a Constitution which lets Boss Hogg take your house, and he WILL if he can get money out of it.
You lose me with your deep thinking,we need a national standard,what the hell do you think Kelo was if not a national standard? Boss Hogg TOOK my home with Kelo when the liberals on the Supreme Court who outnumber the conservatives voted to uphold Boss Hogg's right to take land for reasons other then the general welfare.You go spin Kelo any way you want but it reinforced what Boss Hogg was doing in the first place which was the taking of private property to give to another private entity for tax purposes and the reason I doubt the Constitution didn't address this situation is because the founders never envisioned American government at city,state or federal level pulling this crap on it's citizens !!!
Yes, Boss Hogg took your house, because the Constitution of the United States was interpreted by strict constructionists who looked at the original intent of the Founders. The original intent of the Founders was to limit the FEDERAL government, not the state governments. They assumed (wrongly) that state governments would be closer to the people and therefore easier to control. But in reality, governments are huge and there are a lot of laws, and people don't have the time to gain more than a passing knowledge of the law. State matters are less important, and so people pay a lot less attention to elections, which means that state governments are ALWAYS the pawns of special interests, and are always much more corrupt than the Federal government. Nobody but professional pols has the time or resources to closely watch state government; individual voters don't. So, state government has all of that power given to it under the Constitution, and state government uses that power abusively and corruptly, quite routinely, and doesn't get called to task by the voters unless something is completely over the top and affects a lot of people.
The Supreme Court in Kelo left the decisions of land law to the states, and said that states taking private land for private use was not a Federal constitutional issue. So, the issue remains precisely where the Founders intended it be left: in the States.
The States means Boss Hogg.
For the Supreme Court to NOT let Boss Hogg take your house, it would have had to have done this: The Constitution was originally intended to apply to the federal governments, not to the states, but the shadow of the penumbra of private property rights contained in the clause that doesn't permit the FEDERAL government from taking land without compensation applies to the STATES as well. Further, the Constitution doesn't say that land can't be taken by eminent domain to increase the tax base, but WE say so, because we are the Supreme Court, and we have the power to make decisions like this, and take powers away from the states and make them Federal law, even though the Constitution doesn't say what we are doing. We are the Supreme Court, and we make the law, just like we did in Roe.
That's what the court would have had to have done.
I am pointing out that this would be extreme judicial activism, and a usurpation of the powers of the states by the Federal courts, creating new law using their power as the Supreme Court. I think that private property rights are so important that the Supreme Court needs to override the Constitution and simply make a new rule here, because the Supreme Court has that power and has used it.
That means that the Supreme Court would need to do exactly what it did in Roe v. Wade: ignore the Constitution, ignore the original intent, ignore states rights, and simply make a new law up and impose it on everybody, because private property rights are more important than respecting the Constitution. Taking people's houses is SO bad, that the Constitution has to be ignore and the right rule imposed by the Supreme Court.
"Yes, Boss Hogg took your house, because the Constitution of the United States was interpreted by strict constructionists who looked at the original intent of the Founders."
Well I believe Scalia and Thomas disagree with with you, and I also believe that the reason goes deeper then states versus the Federal government.The Constitution puts special reference on private "ownership" as well as private "rights' and when government at any level crosses this line of relationship citizens should be VERY alarmed at the consequences of these acts !!!
The Constitution really doesn't put special emphasis on private ownership. A reference to private property is made once, in the 5th Amendment. All it says is that government can't take private property for public purposes without paying just compensation.
Originally, this was meant to apply to the federal government, but that's almost beside the point. What is a public purpose? And what is "just" compensation? And who decides?
When the railroads were built, the Federal government outright gave the railroad companies 25-mile wide swaths of land across the country, and the feds condemned and took whatever private property stood in the way of those paths.
The effect of this was to vastly enrich the railroads, who sold off the land whose value was assured by the presence of the railroad. The railroads only needed a 100-yard wide path, but they got several thousands square miles of land given to them instead, just so they could make bigger profits. Did this encourage them to build the railroads? Of course. Same thing is true with modern condemnations that take private land to give to a different private actor whose activity makes more money, which then is subject to more taxes and boosts the economy in general.
What is being done under Kelo has always been done in the US. It's never been banned by the Constitution. Americans have this myth that the law USED to be good, and that the Constitution was made good but has been corrupted. But actually, the Kelo decision didn't change already-existing laws, which trace back to the Constitution. And actually, the Constitution does not have any particular solicitude for private property. It's about government power and who has it, and what limits there are on it, if any.
Scalia and Thomas, in this case, wanted to be judicial activists. Oh, they might SAY that they are being conservative, but it is not true. Point to the words in the Constitution, any words other than that one clause in the 5th Amendment, where private property is put on a high pedestal for special treatment. It's not there. Point to the "original intent" of the Founders? Their intent was to not have the Constitution limit the states at all - except where they explicitly said so. The Constitution was supposed to limit the FEDERAL government. Nobody in 1789 thought that the 5th Amendment meant that states had to pay just compensation for land takings. Maybe the State constitutions had protections (but maybe they didn't), but the Federal Constitution - including the 5th Amendment - wasn't INTENDED to apply to the states at all.
And, of course, the states were quite ruthless about confiscating Tory lands, and didn't give it back or pay for it either.
Scalia and Thomas are RIGHTLY horrified by the taking of land to give to other private actors. They rightly see this as an abuse. But these guys are so committed to a conservative, strict-constructionist position that they have to essentially make up fiction in order to pretend that doing this was against the original intent of the Constitution. It wasn't.
For my part, I do not like self-deception. I don't like lying to ourselves that we are doing one thing when we are really doing another thing. My problem with it is that the hypocrisy ends up undermining everything at some point in the future.
In the case of eminent domain, the fact is that Kelo was absolutely right, under the Constitution. The Constitution does not protect private owners from their states and cities taking their land to give to other private parties who will make more money, so long as the city or state pays "just" compensation, as defined by the city or the state. That has always been the way it was, and with the Kelo decision, the Supreme Court simply reaffirmed the Constitution as written when it comes to eminent domain.
They didn't make up NEW law. The US government did the same thing in the 1800s when it took private land and gave it to the railroad corporations.
The problem is simple: on private property, the Constitution sucks. It blows. It was not designed to protect you or me, and it doesn't. It's a weak document on private property rights, but a very strong document on government property. I am heaping abuse on the Constitution, precisely BECAUSE people treat this old document as though it were holy writ, as though it were the Bible, and this BLINDS US to the ability to accurately protect ourselves against some of the really crappy and totally unacceptable aspects of that old piece of paper.
Fact is, Kelo is right, under the Constitution.
Fact is, all the Constitution requires, or ever requires, is that some government court pay you some money...the GOVERNMENT'S idea of "just"...if they take your land to give to some other private person. That's our precious Constitution. It's bad. It sucks. It blows.
If we are too pious about this old piece of paper, treating it like the Bible, it makes us superstitious about doing what we NEED to do sometimes. Sometimes we actually need to treat it as a deficient document, and as a LIVING document, and amend it by judicial activism. Not through the amendment process, not on something like property rights.
Why not?
Simple. The Constitution was written to be too hard to amend. There is so much power and money on the side of Kelo, that you will NEVER get 2/3rds of both houses of Congress, and 3/4ths of corrupt state legislatures, to cut off trillions of dollars of economic power and patronage. Money is part of our system - and conservatives here and elsewhere go ballistic on John McCain for "limiting" free speech by limiting contributions to government. The flip side is that those contributions are precisely WHY towns and states reliably use eminent domain to take houses and give them to Pfizer or other big companies. Big companies have money, and money is power in politics.
We CAN'T amend the Constitution to get around the problem of bought-and-paid-for state and local government which WILL use eminent domain power to take houses and give them to Boss Hogg. It will never work, because PEOPLE do not get to vote directly. Politicians have to vote to do it, first in Congress, and then in the states. That will never happen.
So, we can't do it the "Right" way and amend out that power.
That leaves us with two choices: (1) "Respect" this hoary old piece of paper as though it were Holy Writ and infallible, and therefore not protect our homes, or (2) frankly admit that, when it comes to protecting our houses, the Constitution is a piece of crap which favors big money, and find a way to GET AROUND the Constitution. That means getting a court to use some judicial activism, and treat the Constitution as a "living document" and simply use judicial power to say that it MEANS the opposite of what it SAYS. In other words, we need judges to amend the Constitution to protect private homes because the political process cannot do it.
The problem with Scalia and Thomas' argument is that it is dishonest, and obviously so. The Constitution never meant to restrict state eminent domain power, and it was never used to prevent Kelo-lie circumstances. The Founders used eminent domain in their states - against Tories especially, but also to build the National Road, and the canal system, etc. - just like cities and states are using it today. So, when Scalia and Thomas say that the Constitution has always meant protection of private property against this sort of thing, they are making shit up. It never meant that, and never did that. Ever. Either they don't know the history of land taking in America and are so lost in thier ideology that they just ASSUME that their sacred document's original intent could not have been something so dark and bad. Or they know the history and are simply lying out their asses and making up an "original intent" that was never there, because they don't want to go on record as hypocrites supporting judicial activism to stop an atrocity after having shed so much ink opposing the "living Constitution".
Either way, it doesn't work. If the argument is from ignorance, the facts blow it away. Government has always done this. If the argument is intentionally hypocritical, it undermines itself because it's not hard to blow it out of the water.
Truth is, we need to protect homes.
That is very important.
Truth is, the Constitution DOES NOT protect homes from takings. Never did. Kelo is a constitutionally "correct" decision.
Truth is, Kelo sucks and the Constitution sucks on this point.
So, the choice is to either obey the Constitution, bad as it is on this point, and lose our homes when someone wants them, OR to simply ignore the Constitution and override it judicially, by creating a Constitutional right to protect homes that is NOT in the document, and that the Founders never intended to be in the document.
I say the latter, but I am very results oriented.
Likewise, my approach to getting rid of abortion would not be overturning Roe and trying to vote it out - we know from South Dakota that the voters won't vote out abortion. I would have the judges declare a baby a legal person from the moment of conception, entitled to full legal protection under the Constitution, and abolish abortion by judicial fiat, just like Roe, but in reverse.
But then, I think that protecting human life and protecting private homes is a lot more important than making an idol out of an old piece of paper and pretending that it contains greater wisdom and protections than it really DOES.
If you want to protect your house, you need to embrace judicial activism for that purpose. The Constitution doesn't protect you.
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