Posted on 06/25/2005 12:34:04 PM PDT by n-tres-ted
Memo To: President George W. Bush Cc: Karl Rove From: Jude Wanniski Re: The “Taking Clause” Erased
To be honest, Mr. President, until the Supreme Court on Thursday announced its 5-to-4 decision limiting the property rights of all Americans, I assumed that upon the retirement of Chief Justice Rehnquist you would not name Justice Clarence Thomas to fill that vacancy – and that you would probably be wise to avoid the controversy his nomination would bring.
But after reading Justice Thomas’s dissenting opinion in the New London, Conn. case, I think his wisdom, his judgment and his perspective so clearly fits him to be Chief Justice that the American people would not permit the kind of political firestorm that accompanied his appointment to the Court by your father 15 years ago.
Justice Sandra Day O’Connor wrote for the minority and was properly scathing in her criticism of the opinion that government can use its power of eminent domain to foster economic development. But writing separately, Justice Thomas understood that the Court’s action in itself is unconstitutional, a “dangerous” act because the American people now have no other recourse to regain control of their property rights except by another amendment to the Constitution.
We thought we had this protection in the Bill of Rights, specifically the “taking clause” of the Fifth Amendment, which clearly states that private property shall not be taken “for public use, without just compensation.” At issue in the New London case was the city’s expropriation of 15 perfectly good homes to a private developer who planned to make different use of the property -- with the city hoping to get higher tax revenues in the process. The owners refused compensation, wishing to remain in their homes.
In the opening of his dissent, Justice Thomas says:
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. The Framers embodied that principle in the Constitution, allowing the government to take property not for public necessity, but instead for public use. Defying this understanding, the Court replaces the Public Use Clause with a [P]ublic [P]urpose Clause, (or perhaps the Diverse and Always Evolving Needs of Society Clause, a restriction that is satisfied, the Court instructs, so long as the purpose is legitimate and the means not irrational. 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. 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.
In all my years either reporting on the Supreme Court, as a newspaperman, or following its decisions as a political analyst, I’ve never encountered a decision as brazenly unconstitutional as to be frightening in its implications. My first thought was “this is communism.” Except that the government must still provide monetary compensation that another court would ultimately decide, there is nothing different from a communist expropriation of private property with the good intentions of making things better for the “community” at the expense of the landowners. The New York Times, which predictably hailed the decision under a headline, “The Limits of Property Rights,” sounded more like Pravda in its conclusion: “New London’s development plan may hurt a few small property owners, who will, in any case, be fully compensated. But many more residents are likely to benefit if the city can shore up its tax base and attract badly needed jobs.”
In his distinguished years on the Court, Justice Thomas has been regularly derided by black politicians as a “conservative” who has been insensitive to the needs of blacks that could be satisfied by judicial rulings. It is they who have been insensitive as to how he has been protecting their fundamental rights by protecting the Constitution. Here is how he concluded his dissent:
If ever there were justification for intrusive judicial review of constitutional provisions that protect discrete and insular minorities, surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages those citizens with disproportionate influence and power in the political process, including large corporations and development firms to victimize the weak.
Those incentives have made the legacy of this Courts public purpose test an unhappy one. In the 1950s, no doubt emboldened in part by the expansive understanding of public use this Court adopted in Berman, cities rushed to draw plans for downtown development. Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them. Public works projects in the 1950s and 1960s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. In 1981, urban planners in Detroit, Michigan, uprooted the largely lower-income and elderly Poletown neighborhood for the benefit of the General Motors Corporation. Urban renewal projects have long been associated with the displacement of blacks; [i]n cities across the country, urban renewal came to be known as Negro removal. Over 97 percent of the individuals forcibly removed from their homes by the slum-clearance project upheld by this Court in Berman were black. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.
Mr. President, if you had already decided against Justice Thomas as I had, please reconsider. There is no one else like him in America. He was born to be Chief Justice at this time of the nation’s life.
* * * * *
Amen and bravo, sir! The very words "Chief Justice Clarence Thomas" conjure up a dream of our Republic in safe hands, at last!
No, I really don't. The recent commerce clause ruling, where Scalia ruled with all the liberal justices, confirms that. Scalia is much too unwilling to overturn previous court precedent -- even if those precedents are inconsistent with the founding documents.
It's enjoyable to think of the hate and anger that the Dims would have after Clarence Thomas' nomination to be the Chief Justice and I would also enjoy that.
Nonetheless, I believe Justice Scalia would be a highly superior Chief Justice, marginally better than Justice Thomas and more able to work with the idiots who exist on the Supreme Court. In your face all the time just isn't going to halp things along. Fun to watch though.
I concur!
Plus having the added bonus of driving the leftists bongers
BTTT
I'd be happy to see Thomas in the Chief Justice's chair as a second choice after Scalia (who I think deserves the shot and is the older man, and the best mind on the Court), and Brown as a new Associate Justice (even though she is a bit inexperienced on the bench yet, and another originalist or strict-constructionist appeals-court judge or state supreme-court justice might be a better choice), but I think Bush has already shown his hand.
There was a story in our local paper this week to the effect that Bush had his aides checking out appeals court judges for the top spot, and that he had his new AG, Gonzalez, on the list -- but on a sheet of paper all to himself. The thinking seemed to be that Bush will walk right past Scalia and Thomas in order to put a Hispanic in the Chief Justice's job.
Now, Gonzalez would be a far weaker choice than either Thomas or Scalia on merit and experience, and weaker than O'Connor, like whom Gonzalez would apparently vote.
Gonzalez IMHO would move the Court to the left. Turned loose with a life appointment as CJ, he might even turn into a Kennedy or a Souter or an Earl Warren, and just run wild.
But I think I see the point, which is that nominating Gonzalez is a Rovian imperative: the Mexicans are swamping the country, both Dims and big GOP contributors want the borders held wide open -- the Dims because they see Mexican-Americans and newly-dipped illegals voting 70-30 Democrat, the big Republicans because they want to crush wages across the board with an endless stream of Malthusian Third-World masses .
Therefore it is imperative that Bush Hispander to the newcomers, and one way to do it is to give them Power, and to be very conspicuous about it -- hence the nomination of Gonzalez, come hell or high water, irrespective of merit or of how he would vote if he got on the Court.
Furthermore -- and here is the really Rovian part -- you can count on the Dims to have a cow if and when Bush puts Gonzalez up, and his nomination might even fail. If so, at least Bush gets credit among the Chicanos for having tried to put the son of an illegal immigrant on the Supreme Court.
It's all about the votes. That means Scalia and Thomas have to take a number. It also means that Bush is turning his back on the entire Republican Party, except for the big employers, and that his mandate comes from perhaps 100,000 people at the top of the economic pyramid who think they can control things no matter how many Mexicans end up voting in U.S. elections, with or without citizenship, if only they can work up to a 50-50 split of the Mexican vote. They're already getting about 50% of the Central American and South American vote, and a majority of the Cubanos down in Florida.
As for the consequences for the rest of us, they don't care. Or, to be blunt about it, they see it as imperative that they make things worse for the rest of us, and they know how to get it done.
Personally, by the way, and absent any other considerations, I think it would make more sense for Bush to fill Chief Justice Rehnquist's position with a sitting Justice, and then nominate his young AG for an Associate position. But the newspaper article was clear, that the interviews and backgrounding now going on are for the Chief Justice's job. It would appear that nothing less will satisfy the President, than that he install the son of an illegal immigrant as the jefe juez of the entire Judicial Branch of the United States Government.
Try wrapping your minds around that.
Why is that? He was one of the original Reaganauts and a proponent of the Laffer Curve.
Who are these people, what is their theory of the Constitution? And why are they crossways with Scalia?
Do you have a name I can search on, to see what they think?
I really like Judge Thomas. His attitude is always professional and thoughtful. I don't always agree with his decisions, but he at least understands and acknowledges that we have a Constitution.
You make a good case for Clarence Thomas. He's got a good history, in my opinion, and seems firmly committed to everyday folks like us.
The eminent domain ruling is a hideous breach of faith with the American people and constitution. What happened to property rights and liberty in this country?
Plus, as an appreciable fringe benefit, it would put another hole in the leaking sieve argument that 'racist' Republicans ignore minorities. A power trio of Powell, Rice and then Thomas would firmly render that stereotype into the grave of shameful falsehoods that it so richly deserves.
But I can't shake the feeling that if people had been as POed about the most recent and ultimately more egregious breach of the Fifth Amendment, the court-ordered and executed death warrant (by cruel and unusual means) that was issued against the unindited, uncharged, untried and unconvicted American citizen named Terri Schiavo, she would still be among the living.
The first test of any new judge should involve a sixth-grade level reading comprehension exam, to see if they can grasp the simple words of the Constitution.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A coherent and intelligent analysis. However, I must say I disagree with a few of your premises. First, I think immigration to this country is a boom and benefits everyone (as it always has). Secondly, I think what is good for the top 100,000 is good for the rest of us and vice versa. When you start dividing people by class and viewing policy that way it is a slippery slope down to teh ash heap ofliberalism.
I agree with your assessment on Alberto Gonzalez (as somewhat of a RINO) and also agree that Bush is most likely to pick him for an open SCOTUS position, perhaps chief SCOTUS. I don't think this would be a disaster and yea there is a lot of politics to it. If there are two openings and we get Alberto and Janice Rogers, I'll be more than happy.
Check out this petition site:
http://www.petitiononline.com/5amend/petition-sign.html
An email correspondent's comment:
"FOLKS: This past week, SCOTUS (Supreme Court OF The United States) once again, has attempted to rewrite OUR Constitution to totally change the original intent as written by the Founders.
Eminent Domain was NEVER intended to be used by government EXCEPT to obtain property for roads, public buildings, schools, military bases and other necessary government usage.
This past week, the Supreme Court rewrote the Constitution, stating that it was legal for cities to condemn private property under Eminent Domain, to purchase and then resell to developers and other special interests, supposedly to benefit the community and the city by increasing tax revenues.
THIS IS TOTALLY BOGUS!
Please click on the link below and add your signature to the petition for a Constitutional Amendment to put a stop to this invitation to even more corruption within government and the theft of private homes and property for the financial benefit of a few.
http://www.petitiononline.com/5amend/petition-sign.html"
I see it that way too. But, as far as I am concerned, Thomas is the only one of those guys qualified for the job.
The underlying assumption of the CIE movement is that the last 100 years of expansion of Federal power is a subversion of the constitution. It’s hard to find a non-partisan account of the movement, so I’d suggest you GOOGLE “Constitution in Exile” or “Federalist Society", look around, and reach your own judgments.
That said. the basic assumption of CIE proponents is that many powers assumed by the Federal Government (examples, depending on who you were talking to, might include environmental regulation, labor law, the appropriate role of religion in the political system, the regulation of medical practitioners and the like) - should devolve back to the states. In the case of more extreme CIE arrangements you would have essentially sovereign states subject to only very limited Federal authority.
This an argument that doesn’t always align very will with the goals of some “conservative" interests, for example those who wish to exert uniform Federal control over personal behavior (ex: national probations against abortion or pornography) or those who seek efficient national markets (larger insurers for example, are pressing for a Federal takeover of regulation of their industry to forestall action by State Attorney Generals). Sometimes, this conflict extends even to individual opinions, it’s not hard to find individual conservatives who would welcome a federally enforced ban on abortion but are also opposed to the current federal efforts to thwart state “medical marijuana” laws.
Still, though the situation is sometimes complicated, it’s possible to discern the general leanings of SC Justices, and on such matter Thomas is closer to the CIE view, while Scalia is more deferential to federal power.
On this matter Scalia and Thomas can’t both be the President’s “favorite justice”, and if one or the other becomes Chief Justice, he will clearly be siding, roughly, with either the Corporate or the Social Conservative wing of the party.
As the president will need the support of united Republican Senate to confirm his nominees, it seem to me the safe “political” choice would be someone who agrees with the president on such issues, but has not left a “paper trail” that would upset either side of the CIE debate.
I'll start believing that when I read that George Bush and Hilary Clinton are encouraging their children to enlist - perhaps the "power elite" in this country ought to feel that their interests are aligned with those of the rest of us, but based on my experience they are increasingly so poorly educated (especial in 20th century American history) and besotted with the belief that they are members of of naturally ordained aristocracy that they fail to make the connection.
Mine too.
I emailed President Bush with this sentiment the day the decision was handed down.
Mark
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