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To: Vicomte13

Kelo is nothing more then governments power play to confiscate private property for one reason and one reason only,and that reason is taxes. If you believe there is anything Constitutional about Kelo that's your opinion not mine, and the repercussions of Kelo are being felt all over the country where state and local governments are confiscating land previously owned, in some cases for decades for this crack whore reason !!!


51 posted on 12/20/2006 9:16:51 PM PST by Obie Wan
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To: Obie Wan

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)?


68 posted on 12/21/2006 5:40:31 AM PST by Vicomte13 (Aure entuluva.)
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