"There is always a philosophy for lack of courage."—Albert Camus

Monday, January 23, 2006

Supreme Court Spectator

Here's a preview (by a few hours) of my article at The American Spectator, available to the broader public at midnight Eastern Time.

It discusses the Supreme Court's agenda after Alito and suggests taking aim at the Kelo vs. City of New London ruling which is taking takings to a level that most folks can't take.

Here, sample a smidgen:

...the piquant tale of Mr. Logan Darrow Clements. This man with the three cognomina may become more than a nominal cog in the historical battle to set the Supreme Court aright. In his low-key way he has taken aim at Kelo vs. City of New London. That disastrous decision of recent vintage allows municipalities to initiate takings of private property for the public advantage of enhancing the local tax base. This means that if The Donald convinces the city elders that he could build a revenue-generating casino right where your patio used to be, that putative benefit trumps your ownership. Your good deed will not go unpunished.

Mr. Clements has chosen a novel means of protest, one he compares to the Boston Tea Party. He has proposed to the sleepy New Hampshire burg of Weare that its most illustrious citizen, Justice David Souter, be evicted from his home to allow for construction of a hotel, the Lost Liberty Inn. On what grounds would it be built? On Souter's grounds. That is, the grounds of his vote with the majority in Kelo. Clements has already assembled the 25 signatures required to place his petition on the ballot in March: nine out of ten locals approached signed on the dotted line! Perhaps his idea is less dotty than it seemed.

10 comments:

Tlaloc said...

From everything I've read Kelo was entirely correctly decided. We may not like the result but the fault lies not with the SCOTUS. They remained faithful to the connecticut statute in question.

In other words they did what the right keeps harping on them to do: respect the elected branches of government. Besides which Kelo effectively changed, well, pretty much nothing. At best it was only the tiniest change from the long established precedents that it was founded upon.

Kathy Hutchins said...

I don't want to create skating rinks in Hell or anything, but.....I agree with Tlaloc. If the Court had found for plaintiffs in Kelo it would have been a significant break from previous takings jurisprudence. I'm glad that the suit was litigated, and I'm similarly glad that Mr. Clements is engaging in his delicious conservative political guerrilla theater, but the remedy for these offenses against justice lie with state legislatures, not the Supreme Court. Municipalities have no power that is not "loaned" to them by states, and the states can take it back anytime they want to. The court cases have been useful in shining light on these shameful deals, but it's now time for citizens to make their will felt in their respective statehouses.

connie deady said...

State emminent domain statutes have a long, long history. For years people have been deprived of their property for public good (building roads being the primary reason).

I think maybe the concept of public good was stretched from what I recall of reading the decision at the time, because a private developer benefitted as well.

The tension is always between individual rights granted by the Bill of Rights and state action. States and local governments may not deprive their citizens of rights granted to them by the Constitution.

It's a straight 5th amendment issue. The fith Amendment provides:

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.

Seems pretty clear by any strict construction that local governments can take private land away. The issues involved are 3: due process, just compensation and public use. The first two are likely clearly met, the question is whether it was "public use"

Kathy Hutchins said...

From an economist's point of view, "just compensation" is hardly ever offered. Because if it was truly "just" -- in the economic sense of leaving the owner no worse off -- you wouldn't have to force the owner to accept it. The legislative remedy could just as easily be a reform of the meaning of "just compensation" as it could of "public use" -- since if the prospective buyers had to pay the current owners the true value they placed on the land, most of these deals wouldn't make economic sense.

Michael Simpson said...

I have my doubts about the justice of "taking" Justice Souter's home, even if the idea of it has a certain poetry about it. We really don't want to go down the road of essentially punishing judges for their decisions, it seems to me.

That said, it also seems to me that there were good grounds for overturning precedents (or just pruning them back) and recognizing that the rights to one's private property ought to trump the community's desire for greater tax revenue - especially when that's the *sole* "public good" being pursued. In any case, there are non-judicial remedies for this as well - throw the rascals out of office....

Kathy Hutchins said...

Oh, I don't think Kelo was a slam dunk case, obviously -- it was 5-4 after all, and Justice Thomas's dissent made some powerful arguments that not only should Kelo prevail, but that a lot of takings precedent should be revisited. I suppose I should have just said that I wasn't surprised at the decision given recent history, and not left the impression that I thought the plaintiffs' case had no merit. Actually, I was surprised the vote was as close as it was, but then no one could ever tell what O'Connor would do on any given day.

tbmbuzz said...

Connie is dead on in her analysis. The issue in the public eye is the 5th amendment concept of PUBLIC USE, which SCOTUS essentially construed can include benefits for a private entity in certain cases. I'm not a legal scholar but from my layman's perspective, this is dead wrong and unconstitutional, and certainly not what the Founding Fathers defined as "public use". Furthermore, the public use has to be fundamental, a test that Mr Clements' political guerrilla theater, as Kathy so aptly states, does not pass.

If Tlaloc's objection is separation of powers, I disagree. The court's purpose is to determine the constitutionality of laws, whether they be local, state or federal, not rubber stamp them.

But really, this is all water under the bridge. Since SCOTUS has ruled, the only remedy is legislative, driven by grass roots.

JC said...

I don't think you need any grass roots... pretty much everyone in their right mind was at least annoyed by the decision, and both parties in Congress want to do something about it.

Tlaloc said...

"The issue in the public eye is the 5th amendment concept of PUBLIC USE, which SCOTUS essentially construed can include benefits for a private entity in certain cases."

Actually that's what the cennecticut statute says: that public use can mean advantageous to the public economically. Again the problem was at the legislative level, the SCOTUS just chose not to overturn it because for whatever reason they found it not to violate the fifth.



"If Tlaloc's objection is separation of powers, I disagree. The court's purpose is to determine the constitutionality of laws, whether they be local, state or federal, not rubber stamp them."

Oh I absolutely agree that is there role but the Right as a whole has screamed bloody murder about the court doing that job and has consistently called it "judicial activism."

connie deady said...

Connie is dead on in her analysis. The issue in the public eye is the 5th amendment concept of PUBLIC USE, which SCOTUS essentially construed can include benefits for a private entity in certain cases. I'm not a legal scholar but from my layman's perspective, this is dead wrong and unconstitutional, and certainly not what the Founding Fathers defined as "public use". Furthermore, the public use has to be fundamental, a test that Mr Clements' political guerrilla theater, as Kathy so aptly states, does not pass.

See, not all liberals are wild-eyed radicals. I didn't like Kelo because I believe they extended public use below what was intended since it seemed mostly to benefit a private developer - thus robbing Peter to pay Paul.

As to Connecticut's law, remember that the tension between state and federal is that the state's can grant to their citizens more rights, but cannot take away rights guaranteed to them in the Constitution. The Pennsylvania Courts have refused to follow federal 4th amendment decisions finding our state Constitution grants more rights.

That's why IMO the California medical marijuana statute should not have been overturned. It's not an area where federal pre-emption should trumpt the state.

So in terms of Kelo, I don't believe that Connecticut's definition of public use should trump the 4th amendment and it's concept.