Monday, January 23, 2006

On Second Thought: A Response to My Friends Re: Kelo

To catch the drift of this thread you've got to start over at KJ's Cheese. This is a conversation , among friends, and you're welcome to join in. Go there, read, and then come back.

Begin:

C'mon, tee bee! You surely recognize the connection that I was trying to make between Sheehan and whatshimname was not about their respective causes, but about their methods! My modus operandi is to convince lawmakers both behind the scenes and through open discussion about the correctness, or incorrectness, of the position taken by the Court, not to threaten or embarass them personally. However much we might dislike the outcome, it was the result of a great deal of thought by some of the smartest jurists on the planet. The result sucked, in my view, and it begs for a response a legislative response fashioned state-by-state.

Consider, however: But for the media's (and my own) victimization of the "little old lady in New Haven," isn't this decison exactly the kind of inflamatory libertarian kindling a federalist movement should cherish? The Supremes have thrown down, in spades, a gauntlet, through which the American people might choose their course, and it has provided them the reason to excercise the very rights we have accused the Court of denying us. Kelo (might) stand for the proposition that it's for the states, not the Feds, to decide the extent of eminent domain. Its message is clearly: "Get off your ass, people. Fix your own rights." I am not entirely sure that was not the real "point" the Court meant to be taken away.

On the face of it, of course, the Court's decision flies in the face of the "takings clause." More subtley, perhaps, the Court has invited the states... no, it has forced the states, to come to grips with the internal conflicts existing between the pervasive and state-promoted inequalities between in-state and out-of-state interests, fostered by interstate competition for economic expansion, and reflected in permissive state laws granting exorbitant tax breaks and sweetheart zoning deals, and the state's primary obligation to protect the property rights of its citizens. As much as I disagree with Kelo, I must admit that the court has (purposefully?) handed the citizenry a cause célèbre to challenge the corrosive effects on social planning the states have fostered through unchecked abuses of emminent domain.

Maybe I'm wrong. Maybe this is just plain over-reaching by the Court (which was my initial impression). But from such misguided teachings may spring great justice. And maybe I'm just catching on to the lesson.

14 comments:

KaneCitizen said...

Hi there - Thanks for stopping by. Always happy to meet another music-loving blogger.

KC

KJ said...

This sounds so familiar. When the judge makes a mistake that returns the issue to the Congress or the legislature, at least you have a political remedy.

http://nogovernmentcheese.blogspot.com/2005/05/left-view-of-judicial-debate-off-base.html

Of course, it still sucks. See, Feingold-McCain for an example.

Cassandra said...

Oh crap.

Well, I would agree 1000% (if that were possible) with this:

Its message is clearly: "Get off your ass, people. Fix your own rights." I am not entirely sure that was not the real "point" the Court meant to be taken away.

...if it were not for one thing.

And I may be wrong on this.

My limited understanding of the Constitution was that it was the primary source of law in the United States, and that it gave to all citizens, of all states, certain enumerated rights.

It seems that by gutting the Takings Clause, SCOTUS did what it had NO POWER to do: it took away one (some might even say one of the most important) of our enumerated rights without amending the Constitution by referedum.

And that just isn't kosher in my book.

Moreover, if what SCOTUS truly intended to do was turn this matter to the States, it put the fox in charge of the henhouse, b/c local municipalities will always have an incentive to abuse landowners and so the legisatures are not likely to pass equitable laws to protect individual homeowners (who cannot hope to prevail against the collective interest of corporations and businesses).

I don't know - maybe I'm all wet. I know I'm supposed to be a cold-hearted conservative, but this seems a classic case of the little guy pitted against special interests and we all know who tends to win that type of contest.

Cassandra said...

That said, I *do* very much agree with spd's point about people (especially conservatwits) whining about how SCOTUS takes decisions out of our hands and then b**ching and moaning when they hand a messed-up situation back to the legislatures to fix, because that is what is starting to happen. I would look for this to occur *much* more often under a Roberts Court.

I thought it was a very astute observation.

tee bee said...

This reads bitchy, but it's the frustration of the powerless. Try to bear with.

You surely recognize the connection that I was trying to make between Sheehan and whatshimname was not about their respective causes, but about their methods!

Apples and oranges. One is an ideologue pawn of other ideologues, the other is using the law to demonstrate its inherant flaws.

Spd, your MO is laudible but has little hope for effect. The Supremes are untouchables who have extended their reach into matters of leglislation far too many times with impunity. Clement's action will look like a fly buzzing around the heads of giants; it won't embarass any of the justices, unless they see what happens when they live by their own laws. Was anyone who lost their property in an EmDo grab worried about being embarrassed?

Falling back on Kelo as full of thought by great minds is exactly what will keep it in place. No amount of contortion over why they ruled to expand EmDo, including the notion of a Jungian prod to get citizens to act on a state level, excuses their act. As much as we'd like to cherish the challenge, we aren't. As much as we'd like to attribute noble intent to the court, we can't.

The ruling was wrong, unless you think the purpose of propertyholding is to generate taxes for government. The prevailing justices clearly did. It is not the purpose of the court to get people "off their asses." Ever.

Clements is the only one attempting to do something about this cause célèbre. Congress did little except exempt federal funds. Yipee. Local governments saw their power expand, and have begun to grab in earnest. Otherwise, apathy reigns - few states have made any meaningful progress in limiting the powers of EmDo.

In reviewing how much I've written on the subject, I'm deflatedly wondering what use it is. I'd thank you for at least extending the forum thoughtfully, but this losing cause makes it hard to be grateful for anything.

The founders fought for something that Kelo kills: the right to control your life and liberty through actual ownership of property. Few things in life are as pivotal as that, which is why socialists hate it and will use any avenue to take it away. The court has played fully into their hands.

Cassandra said...

Not to pile on, but I'm powerfully reminded of a certain argument we had, way back when, over civil disobedience and the FEC.

I got very bent out of shape when bloggers were openly advocating defying the law before it had even been determined whether the battle had been lost yet. I felt, very very strongly, that this undermined a critical respect for the rule of law - something which, sadly, has already fallen very much into disrepute these days. Everyone feels they can pretty much take the law into their own hands if their personal sense of 'morality' (whatever the heck they think *that* is) overrides their non-existent duty to the larger social group they belong to. And I was chastised and told that when our 'precious freedoms' are imperiled, any freedom-loving American will stand up and fight for what is rightfully his, regardless of the law.

Well as my namesake Katie Scarlett once said, "fiddle-dee-dee".

The "right" to blog isn't in the Constitutition and we weren't even sure it was going away, and yet a million rebels without a clue were ready to hit the streets, digital pitchforks at the ready. No one seemed ready to even consider working through the system. And BOY once the initial furor died down, not a one was interested in the boring work of actually following the FEC draft regs through the chain (which I did for the ensuing months). No one blogged it. Booooo-ring. So much for all that burning passion for their 1st Amendment rights - it seemed to evaporate when the prospect of actual work appeared on the horizon.

Well, you know, it doesn't get much more fundamental than the right to own personal property.

Your home is the most important thing you possess, if you have a family. And SCOTUS has said the government can take it from you.

This man, whatever y'all think of his methods (and I don't think much of them either) is fighting for that right, which was ENUMERATED in the Constitution. And he isn't even going outside of the law! He's doing it entirely legally.

Seems to me he's what my Scots forebears call a canny lad. Tee bee has a point - you don't make the mighty feel the results of their decisions unless you can inflict pain.

Is it distasteful? Sure it is.

But you have to admit that there is a certain Old Testament justice about it too. It is just that we would like to insulate decision-makers from the consequences of their decisions these days.

Perhaps that shouldn't be allowed to happen. I don't know. I certainly don't take pleasure in anyone else's pain. But absent some pretty dramatic object lesson, I don't see this situation getting remedied either.

Pile On® said...

Not to Cass, I don't recall being on the opposite end of that particular discussion. My comments at KJ's site were a little tongue in cheek. But just a little. I will not be shedding any tears for Justice Souter, we are all equal under the law.

Pile On® said...

When it comes to a matter such a eminent domain, I can see where the governments motivations are relevant, but the private developers motivations would seem to me to be irrelevant as a matter of law.

But then I only caught a couple of episodes of Paper Chase, as a very young man.

a former european said...

Cass, you must define what you mean by "the law" when you say it demands respect.

I absolutely respect the Constitution and believe it is one of the greatest "legal" documents ever written. Its historical significance ranks right along with the Magna Carta and Hammurabi.

The idea that power flows from the people up to the govt, and that the govt was limited ONLY to those powers given to it by the Constitution, was truly revolutionary.

Traditionally, power flowed downward. In other words, power went from God, down to the King (divine right of the monarchy), down to the nobility/feudal vassals, down to the lesser nobility/vassals, with the peasants at the bottom. The peasants had no power or rights and lived at the subjective whims of their "betters".

SCOTUS, under liberal activists, has caused a return to the old divine right of kings top-downward power structure, under the guise of establishing a "progressive" agenda. How something turning back the clock to feudalism can be deemed "progressive" has always escaped me.

In any case, the present system is that our new judicial tyrants make pronouncements like kings of old, and we peasants have no choice but to obey upon penalty of seizure of our persons or property. The rulings are based upon the particular whims of the justices, who are answerable to no one, and usually ignore the clear text of the Constitution.

Is this justice? Is such a system worthy of my respect? Judges have shat upon the Constitution for several decades now. Coincidentally, I suppose, respect for the law, judges, and the legal profession is at an all-time low. I believe the two are related and, while the naked govt power grab by the judiciary may not be the sole cause of increased disrepect for the law, I believe it is a major factor.

If nothing else, Judges' attempts to push forward their own political agendas renders them biased advocates rather than neutral arbiters and interpreters of the law, thereby causing them to lose the moral authority which they once had. It is no surprise, therefore, that there is an increased level of disrespect for the law. The guardians of the law have shamed themselves by their conduct, and violated the public trust previously placed in them. They are merely reaping the seeds they have themselves sown.

spd rdr said...

You guys are the best.
I'd respond, but I just spent the last three hours drinking with state legislators and trying to convince them taht Kelo sucks. I think it worked.

Cassandra said...

Pile, as I recall, you were one of the few who didn't "pile on" top of me in that particular argument...for which I was grateful, as I was taking a beating!

afe, the law is the law. Whether a law is passed via state or federal legislatures, made by the judiciary through interpretation of vague statues or in the absence of statutory authority, executive order, or administrative regulations, matters little. Any type of law in this context is made via the provisions set out in our Constitution, and Joe Six Pack's subjective opinion regarding the "legitimacy" of legislative, executive, or judge-made law matter little.

We have three co-equal branches of government set out by the C. All can make law, and anyone who argues otherwise needs a refresher course in civics.

The correct course for those who don't like a given law in a democratic republic is to work through the system to change the law, not to violate it. There is no provision in the Constitution for making law via defiant mischief. People who violate the law go to jail - for a reason. They have offended society.

I realize your background is different, but we do not live in Communist Russia. It may be arduous to change the law, but we have rights and we can exercise them. Just because it may be difficult does not mean we are allowed to break the law to make life "easier" or "more convenient".

That way lies madness.

a former european said...

Cass, I must respectfully disagree. We would still have segregation today but for civil disobedience. For that matter, we would still have slavery.

I believe it is the duty of moral men and women everywhere to rise up against unjust laws. It is in the nature of govt, ANY govt, to seize and accrete power to itself at the expense of the governed. Ultimately, this leads to oppression unless challenged or restricted.

Even with all the built-in restrictions and limitations the Founding Fathers built into our system of govt to keep it small and limited, the Fenris Wolf has broken its limiting chains and is running amok. Will you stand idly by and say "Oh well, the law is the law."?

This was not the response or position of the Founding Fathers. Read the Declaration of Independence and their view of King George's "laws".

Blind obedience to unjust laws is a dangerous thing, IMO. Germany was a democracy and freely elected Hitler. The anti-semitic laws in the early days were legally passed by the Reichstag, and became the law of the land. Human nature being what it is, people can often be swayed by demagoguery to do wicked and unjust things. Democracy does not insulate us from this.

Lest you think I'm being too extreme by bringing up Hitler, even in the early days before it became a dictatorship, remember our own black marks like the Nisei camps in WWII, and Lincoln's behavior during the Civil War (arresting SCOTUS for ruling some of his actions unconstitutional, having troops open fire on protestors in Baltimore and New York who were against the war, etc.).

By saying "the law is the law", you are espousing a might makes right worldview. While such a view may be accurate given human history, I prefer to appeal to peoples' "better natures" and hope that, now and again, right will triumph over might.

I am reminded of that one lone chinese guy, after the massacre at Tiananmen Square, standing up to the column of tanks. I would like to think that I too would be brave enough to stand up for my principles, and throw down the gauntlet of right, in the face of overwhelming might, but such behavior is exceptional. It is much easier to shrug your shoulders, say "oh well, the law is the law", and walk away unremembered.

tee bee said...

I think it worked.

Getting them drunk, or convincing them to do something about emdo? 'Cause they always smile and nod when you're picking up the tab.

You should have gotten some pictures. Call them collateral.

spd rdr said...

Better'n that, tee bee, I got their eye off the legislation I actually want passed.
It's like magic.