Kelo – the day after
Some reflections, reactions and fall out.
I went home last night, finished off a bottle of Scotch and had a few beers. I sat in my backyard on my comfortable 0.6 acres in the country, looked at my fence (which is only symbolic at this point), looked at Junior’s play-set, looked at the 12 neighbors’ houses I could see from the backyard, and watched my little girl play in her kiddie pool. And it occurred to me that all mine is only all mine until some bureaucrat decides he wants it for any reason whatsoever. Same for those neighbors. I’ve long held that we don’t actually own property any way, we just have an indefinite lease from the state in the form of property taxes. Now, even that lease agreement is null and void.
Also, taxes used to fund things for public use. Now public use is going to fund taxes. There are many municipalities who were waiting on this ruling. They just got the go ahead from the highest level to take whatever they want for whatever reason they want. (You can peruse many of these cases here).
Now, to address some comments made around the blogs and that I got by email on my emotional state as, just to use one example, impassioned if not analytical:
I’ve been covering Kelo for almost a year. I’ve dedicated a lot pixels and some money to the cause. I’ve also been covering eminent domain for quite a while. I had a lot invested in this subject emotionally and am not some Johnnie come lately on the issue. And I’m angry but mostly sad. It takes a real man to weep for his nation.
Also, to my gunblogger buddies who are stating it’s time to hoist the black flag, quoting Jefferson, and calling for revolution: Put up or shut up. Unless you’re on your way to Connecticut right now, the rhetoric will do more harm than good. Actually, being on your way to Connecticut will probably do more harm than good. That’s not to say I don’t appreciate or understand the sentiment, but the fact is that it’s not going to happen and if it did happen, it wouldn’t work. People will shake their heads, nay-say, and bitch but nothing will be done when the bulldozers level Suzette Kelo’s home. People won’t even defend their dogs when the state comes to take them by force. Sure, I made a half-hearted comment about sending guns to Connecticut but its pointless because I can’t send them balls.
Folks can entertain these fantasies of a group of freedom fighters engaging the bureaucratic machine but you will lose. You will die or be imprisoned. Period. The cause needs you to be alive and free not in jail. The fight isn’t over, it just got local. We need to press local and state officials to pass laws that restrict eminent domain. That’s the way you win this one. And it will be a long haul that will probably take decades. Some bills have already received support of legislators, like this one. Note to The Rep: It’s public use not public good.
This notion kicked around that we need another Constitutional amendment to limit governments’ abilities to seize property is kind of a waste. We had that in the fifth amendment. Fat lot of good it did.
Unfucking the Supreme Court needs to be everyone’s priority. And, since everyone else is politicizing this decision, it’s my turn. The more conservative justices voted correctly on this case (as they did on Raich). Hats off to them. The liberal and supposed moderates shredded the constitution. Consider this my official withdrawal from the Coalition of the Chillin’. No, the world didn’t end on May 23, 2005 but exactly one month later property rights did. The US needs judges who follow the Constitution, not judges who act like it’s a minor inconvenience. We have a lot to do to fix this and this isn’t the time to be fucking around.
Update: On further reflection, it appears to be generally a bad policy to challenge any law with which we libertarianish folks disagree, even though we are right. We keep getting shot down when we take it all the way to the highest court in the land. Act locally.
Update 2: Dear Lord, do we really need to fear challenging the law of the land. Quite depressing.
June 24th, 2005 at 9:58 am
Welcome back to the .. er …. Coalition of the Not Chillin’ Because If You’re Not Pissed Off You’re Not Paying Attention, And I Am Paying Attention. Your first assignment, should you choose to accept it, is to come up with a pithier name than that.
June 24th, 2005 at 10:12 am
As one who posted a “black flag” comment, I have “put up” all that I care to for the time being: This is my line in the sand.
I harbor no illusions about what might happen in the (unlikely, for now) event that I am called upon to take action when the rubber meets the road.
But I’ve got a little boy and a little girl that I’d rather see grow up without a father than to see him knuckle under, beaten by the state, begging permission to live.
I will die on my feet rather than live on my knees. Take that as bravado, false or otherwise, or in anyway that you would like.
June 24th, 2005 at 12:04 pm
right, always wait till the court is made up of judges you might be able to trust. Let’s see what Bush does and what the donkeys do to obstruct him when he makes new appointments to the supreme court.
June 24th, 2005 at 12:35 pm
I’m disappointed by this decision as I was with Raich. Two decisions in a row that I’ve agreed with Thomas and Scalia. I agree that we now have to pressure our politicians to not abuse this new found “power”.
As to waiting for who Bush nominates, it should be noted that the Administration was on the winning side of Raich and haven’t as yet said anything about Kelo v. New London. I suspect that they will like it as it advances the interests of big business, but perhaps thats just the cynical liberal in me.
Rogers Brown’s talk about persecuting people of faith scares me as does Owen’s “judicial activism” (in the words of Alberto Gonzales) with regards to abortion.
June 24th, 2005 at 4:11 pm
I’m with Manish on this one. My fear is that any SCOTUS appointees Bush might put forth would be more likely to “strictly interpret” the constitution in ways that deny implied rights than to do so in ways that enforce the explicitly listed ones.
The “judicial liberals” (to use Xrlq‘s term) piss all over private property issues while enforcing meaningful church/state separation, for example. Bush’s “judicial conservatives” would do quite the opposite, maybe doing a better job enforcing property rights while turning religious liberty into something primarily limited to Judeo/Christians.
By the way, three the five liberals who voted for New London in this case were appointed by Ford (Stevens), Reagan (Kennedy), and Bush 40 (Souter). Ginsburg and Breyer were nominated by Clinton, and those two are the only sitting justices (out of nine) to be nominated by a Democrat.
June 24th, 2005 at 6:28 pm
There is a right time and a wrong time to nuke the filibuster. The right time is when it brings along that wobbly 5-10% in the middle that see the action as a correction rather than an overreach. Remember, there are elections coming up.
This case makes our case for the nuke option far more sound. If we had nuked earlier, it would have not seemed as prudent. Now everyone (not just pro-lifers) should see the threat that these robed thugs pose to the Constitution.
“Chillin” does not mean oblivious.
Gentleness or good temper is the mean in feelings of anger. Short temper or irascibility is the excess, the deficiency has no name but may be called insufficient anger or apathy. The emotion of anger can be caused by many different factors, but the good-tempered man is always angry under the right circumstances, with the right people, in the right manner and degree, at the right time, and for the right length of time. Excess can be shown in too much anger, or unjustified anger, or too lengthy anger, etc. Apathy is the vice of those who do not get angry when anger is justified and who are not affected by things that should arouse anger; apathetic people often seem to have no feelings and to be unable to suffer pain for any reason.
—-Aristotle
June 24th, 2005 at 8:11 pm
Which is exactly the reason we can’t afford to compromise on the nuclear/constitutional option. Justice Kennedy is a prime example of what happens when Republican Presidents are politically forced to settle for second best. Without him – and with the far more qualified Robert Bork in his place – there’s little question how yesterday’s decision would have been decided.
June 25th, 2005 at 2:05 am
I don’t see how the nuke option would resort in anything other than an even more partisan judiciary. Now you may like this in the short term because you happen to agree with the partisans currently in power, but sooner or later that pendulum will swing again. So what you’d ultimately wind up with is nine extremists instead of six extremists and three moderates.
And frankly, had Bork been confirmed, I seriously doubt Thomas would have been, which means you wind up with a wash.
June 25th, 2005 at 8:55 am
That was my problem with it initially.
June 25th, 2005 at 10:11 am
Have you read the decision and dissents yet, Uncle? The rationale for calling this “public use” is not that it will generate tax revenue. It’s that it was part of a general development plan not formulated to benefit particular parties, merely to rehabilitate the city’s economy.
The true “libertarianish” objection to this decision ought to be to question whether real estate development is a legitimate role for government.
Another small correction, your yard is not subject to the whims of “a bureaucrat”; it’s subject to the whims of a full legislative body you can petition, challenge, scrutinize, elect, and serve on.
June 25th, 2005 at 12:53 pm
Hey, no need to leave the Coalition of the Chillin’; as the founder, let me say we were only chillin’ about that one thing: the judicial deal. I’m not chillin’ about Kelo, either; it’s a disgrace…
June 25th, 2005 at 2:14 pm
TGirsch:
Gotta love the terminology. One the one hand, four liberal Justices wipe their butts with the Constitution, which makes three of them “extremists.” At the other end of the spectrum, three conservative Justices actually try to follow the goddamned thing, but that makes them “extremists,” too. Potato, potahto…
I don’t know why you assume that. If Bork had been confirmed, Planned Parenthood v. Casey would have gone the other way, and abortion-obsessed liberals would have lost the main reason they care about judicial appointments anyway. I’m not saying all liberals interested in judicial appointments are obsessed with abortion, but I am saying that a significant enough proportion of them are to tip the balance. Sometimes I think we’d be better off if we one “abortion court” to rule on Roe-related issues, and a separate Supreme Court to rule on everything else.
Mark Coffey:
Isn’t that a bit like chillin’ over binge drinking but protesting the hangover?
June 25th, 2005 at 5:32 pm
I looked through your recent coverage of Kelo (and Googled your site) and didn’t see a reference to the Castle Coalition (CastleCoalition.org). It’s worth a prominent link!
The usual disclaimer: my only affiliation is the modest $ I’ve contributed over the years.
June 25th, 2005 at 7:13 pm
Manish: “I’m disappointed by this decision as I was with Raich. Two decisions in a row that I’ve agreed with Thomas and Scalia.”
Scalia and Thomas were on opposite sides in Raich. Thomas went with his principles. Scalia twisted them to get the result he liked. (The other two dissenters in Raich were O’Connor and Rehnquist – haven’t these two been cancer patients?)
And if Bush nominates anyone who would overturn Kelo, it would be by accident. He himself has made money by the mis-use of eminent domain, back when he was on the board of a ball team.
June 26th, 2005 at 6:56 pm
SayUncle, my trackback’s not working properly, but you’ve been mentioned in a debate between Patterico and Bainbridge…details here.
June 27th, 2005 at 2:03 pm
Xrlq:
Whatever, dude. If the three conservatives even consistently applied original intent or whatever, you might have a point. What you have are three on the “left” who push bending the text of the Constitution to an extreme (except, of course, when that doesn’t suit them), and three on the “right” who favor an extreme literalist interpretation (except, of course, when that doesn’t suit them). The “liberals” would prefer to ignore all or part of the second and tenth amendments, while the conservatives would gladly ignore much of the first and ninth. But to act as if the conservatives on the bench consistently behave in a high-minded, “uphold the letter of the Constitution’s law above all else” manner is laughable.
You’d still have Church/State obsessed liberals (like me). And in any case, this would have glavanized the nation’s pro-choice majority, and the backlash probably would have prevented the Republican revolution as we know it from ever really gaining a foothold. (Digression alert.) There are far too many moderate Republicans who vote that way despite the GOP’s stance on abortion; they wouldn’t necessarily have defected to the Democrats, of course, but they would have forced the GOP to soften its stance on the issue, and that likely would have cost them among their vocal minority ultra-conservative Christian demographic. The result? A splintered GOP. No, the far better strategy is to throw the “pro-life” folks a small bone every now and again without really changing anything about abortion laws. I’d wager that there’s a large percentage of the GOP powers that be that isn’t upset when anti-abortion laws are stricken down; in fact, I’ll bet many of them are counting on it.
June 27th, 2005 at 11:59 pm
Yes, yes, of course. I had almost forgotten that Justices Rehnquist and Thomas are secret potheads, that Justice Scalia gets his jollies by burning the American flag, that Justice Thomas gets a sick pleasure out of upholding laws he finds uncommonly silly, and that all three think drug companies like Pfizer are eeeeevil.
Nobody’s done anything meaningful with the Ninth that I’m aware of, so we’re even on that count. As to the First, I’ll grant you that the conservatives read the Establishment Clause more narrowly than the libs do, but so what? Even if the court had unanimously ruled that no religious symbols can ever be displayed on any government-owned land, WTF would that do for my freedom, yours or anybody else’s? I’d trade the Establishment Clause for the stuff that counts (free exercise of religion, freedom of speech and freedom of the press) any day of the week. As to those other parts of the First Amendment, perhaps you’d care to remind me once again which judges voted to uphold McCain-Feingold and which ones voted to strike it down?
Possibly, but I doubt it. The only reason Roe sells so well with the left and the pro-abortion center today is because the abortion lobby has done such a good job of exaggerating the practical impact of its reversal. If Roe had actually been reversed, abortion laws would have remained largely the same in all states except the few that actually wanted significant restrictions. Do you really think that millions of moderates around the country would lose sleep over the fact you could no longer get a legal abortion in Alabama?
June 28th, 2005 at 11:15 am
No, Scalia’s into sodomy, remember?
And with the ninth amendment I was referring to the right to privacy (also implied by the fifth, by the way), which the conservative three would gladly defecate all over.
And if you think that the anti-abortion movement would be satisfied with letting the states decide, you’re nuts. If Roe had gone the other way, we’d almost certainly have federal anti-abortion statutes by now, unless all 50 states had state-level prohibitions.
Concerning the establishment clause, I’d argue that any state promotion of religion inherently dampens my right to free exercise. You’ll doubtless disagree. (Then again, prohibiting me from forcibly converting people also infringes on my “free exercise” rights, too, so I guess it’s a wash.)
June 28th, 2005 at 11:56 am
I think I will file suit against my state’s Department of Vital Statistics. When they allow all those Mexicans to name their kids DeJesus (of Jesus), it forces them to put Jesus on official government documents (birth certificate, SS card, driver’s license, ect.). That is an illegal establishment of religion and my delicate atheist sensibilities can’t tolerate it.
June 28th, 2005 at 1:02 pm
The made-up “constitutional” right to privacy is not mentioned in the Fifth Amendment, the Ninth, or any other part of the Constitution. Even the Griswold and Roe courts, which invented that “constitutional” right that just happened to match their own political preferences, didn’t pretend that either of those amendments did so, relying instead on “penumbras and emanations” only they could see.
That said, I will grant you that the liberals are better than the conservatives when it comes to enforcing made-up, pseudo-Constitutional rights that have no basis whatsoever in the … er … Constitution. I might even be OK with that if their creative reading of the Constitution only worked in one direction, i.e., if they only created new rights that didn’t exist, and didn’t also judicially nullify the ones that do.
Some would, although I suspect most wouldn’t. That’s beside the point, though. It’s not a question of when they’d be “satisfied,” only of what they would and would not be able to accomplish.
Impossible. I don’t think we even have anti-abortion in the House and Senate now, let alone at the time Casey was decided, which would have been the time for the big anti-abortion push if there had been one. Besides, any court conservative enough to reverse Roe (five or more conservatives) would also likely strike down a federal abortion ban on Tenth Amendment grounds. Worst case scenario: one of the five pulls a Scalia and relies on some weenie distinction a la Raich, the other four vote to overturn the statute on Tenth Amendment grounds, the liberals vote to overturn the statute by exhumin Roe, and the statute still gets overturned, setting a precedent that means God-knows-what.
Of course I do. Since when does anyone else’s expression of anything dampen your right to express your own views. We have no “establishment clause” on any topic other than religion, so government is free to “speak” all it wants in political issues, quite often expressing opinions with which you disagree. Does that make you feel repressed politically?
June 30th, 2005 at 5:35 pm
So what, then, is the point of the Ninth? To point out that hey, just because a right isn’t explicitly listed here doesn’t mean it doesn’t exist, but unless it’s specifically listed, it ain’t protected anyway, so this Amendment is intentionally left blank?
As to the fifth amendment, you’re right, I listed the wrong one. The fourth is what I meant. Why would anyone even expect to be “secure in their persons, houses, papers, and effects” if there’s no implicit right to some privacy there?
Let’s just get you on record: There’s no Constitutionally protected right to privacy. A legislature could pass a law releasing every detail of your personal life to the public record without your consent, and there’d be no Constitutional issue here.
If you truly believe there’s no such protected right, you should be fighting tooth and nail to get one; otherwise, you scare me.
Assuming you could ever actually get such a principled court. To begin with, you’d need to replace Scalia with a more principled judge, given his propensity to set aside such things when ruling on matters about which he feels strongly. But then I see you recognized the “some weenie pulling a Scalia” option. 🙂
It doesn’t at all when they express it in their homes, or churches, or even on a street corner. It does, however, when they start doing it at places I have to go (Courthouses, schools, city hall, etc.) with state sanctioning. And it does when it compels me to financially support their placement and upkeep through my tax dollars.
Gee, don’t you think maybe they singled out religion for a reason? You argue this as if it diminishes my point when in fact it buttresses it. The framers knew the poisonous effect of intermingling church and state, and took pains to prevent this (for all the good it’s done). And they recognized that people tend to feel even more strongly about religion than they do about virtually anthing else. I’m no fan of originalism, but this is one case where the original intent pretty clear. Just read Madison (who wrote the bloody thing and ought to know) on the matter.
If they put up a monument to Republicanism at my court house, it would, hell yes.