Friday, June 24, 2005

What would Bastiat say? "The law perverted!"

The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish!

If this is true, it is a serious fact, and moral duty requires me to call the attention of my fellow-citizens to it.


Down to each individual phrase, Bastiat's dramatic commencement of The Law is precisely what happened on Thursday with the Supreme Court's decision in Kelo v. New London.

Could we have just seen the most despicable Supreme Court ruling yet? Last March, I warned that if they ruled against the New London homeowners, "we'll know the Bill of Rights is finally dead." Then on Thursday, five of the nine justices did it: they finished killing the Bill of Rights by effectively declaring that private property rights exist only insofar as government permits. Government may now declare "eminent domain" and give you "just compensation," but according to whose valuation? Moreover, the Fifth Amendment's phrase "public use" has been officially convoluted into "public purpose."

There's really nothing left. The last couple of untouched Amendments could fall at any time, now that government has an ability to deny people the core right to private property. Mises, among others, said private property is the basis of civilization. He got it wrong, though, by reducing property to "a human device" and "not sacred" -- if it is a human invention, then other humans can destroy it. That's why our Founding Fathers reminded us that life, liberty and property are gifts from God, which no man has the right to take away.

The key parts of the majority decision are:
Held: The city's proposed disposition of petitioners' property qualifies as a "public use" within the meaning of the Takings Clause. Pp. 6–20.

(a) Though the city could not take petitioners' land simply to confer a private benefit on a particular private party...the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted "to benefit a particular class of identifiable individuals," ibid. Moreover, while the city is not planning to open the condemned land—at least not in its entirety—to use by the general public, this "Court long ago rejected any literal requirement that condemned property be put into use for the...public." Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as "public purpose." ... Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power.

(b) The city's determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference....

(c) Petitioners' proposal that the Court adopt a new bright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic....The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan....
The part that leapt out at me was "literal requirement." Literal? What is the Constitution worth, then, if we are not to take it literally? Well, the majority ruling explained it immediately following: "broader and more natural interpretation," i.e. the Constitution means what they want. It gets worse, giving "deference" to a government that thinks it will succeed, disagreeing with the petitioners (though the dissenting opinions cite court cases that support the petitioners), and refusing to question the government's plan!

Every part of the majority ruling is completely contrary and repugnant to the true meaning of the Fifth Amendment:
...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.
Isn't that exceedingly clear language? You'd think that Stevens, Kennedy, Breyer, Ginsberg and Souter never read the Fifth Amendment, or that they can't understand plain English. Stevens might as well have prefaced the majority decision with, "The last remnants of the old Republic have been swept away."

I couldn't believe my ears when a caller to Sean Hannity's radio show claimed that the homeowners had in fact been given due process. Technically, yes, they did, but only by government's mere declaration, not by the Constitution's standards. Others, like a Columbia law professor quoted here, have downplayed the ruling because cities must still "be careful and conduct hearings." Nonsense. The SCOTUS ruling makes such hearings mere formalities. Cities know they are now empowered by federal precedent, based on nonsensical interpretations of the Constitution.

That's the crux, isn't it? The five justices said, "This is how the Constitution was meant to be broadly interpreted." The four dissenters said, "No, this is what the Constitution actually says!"

O'Connor's dissent (starting on page 27 of the PDF) correctly began by citing the Calder v. Bull ruling of 1798: "[A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it." No level of government has the right to force private property owners to sell to other private individuals, with rare and extremely specific exceptions like liens, and genuine cases of eminent domain. New London and the private developers, however, have no true claims against the homeowners. Their use of "eminent domain" is based on goals of "economic revitalization" in New London.

Justice Thomas joined her dissent but filed one of his own (starting on page 40 of the PDF):
I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them....

Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides "just compensation" for the taking, the Takings Clause also prohibits the government from taking property except "for public use." Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power—for public or private uses—then it would be surplusage.
Don Luskin called it a "sick decision" and said further, "As reader Dave Duval asked me, can you imagine the outcry if the conservatives on the court had backed this decision? 'Conservatives deliver the little guy to greedy businessmen.' Well, that's just what has happened -- and the liberals did it. Where's the outcry? There will be none. Nowadays it's not what you do. It's who does it."

Via Professor Bainbridge (who has always had an insightful perspective on this issue), Will Collier at VodkaPundit is spot-on:
...the price even a willing seller would be able to get from his property just took a huge hit. All a developer has to do now is make a lowball offer and threaten to involve a bought-and-paid-for politician to take the property away if the owner doesn't acquiesce.
This Supreme Court decision will facilitate incredible business bargains. Businesses only have to pay "fair market value" for someone else's private property (remember that Connecticut actually began by condemning the homes, so how much is condemned property really worth?). The state and local governments will benefit from greater tax revenue. Supporters of this perverted "eminent domain" farce would have us believe that it's all hunky-dory, because a majority of people will benefit. It doesn't matter that it's at the expense of a few.

This is literally two wolves and a lamb deciding on lunch.

Welcome to the Empire, my fellow Americans. Aren't you glad to know that today's ruling is in accordance with Article 17, section 1, of the UN Declaration of Human Rights?
Everyone has the right to own property alone as well as in association with others.
There we go. You may no longer own the property yourself, but you still own it as a member of society. After all, if "public use" now means "private use with broad public benefit," then private ownership can be similarly redefined.

You will be further happy to know, fellow subjects of the Empire, that we're well on our way to fulfilling the first plank of Marx's Communist Manifesto: abolishment of all private property.

3 Comments:

Blogger TKC said...

What is left of the Bill of Rights.

http://pubcrawler.blogspot.com/2005/06/what-is-left-of-bill-of-rights.html

I was going to post this here but the comments section won't allow the strikethroughs and I didn't want to retype it.

Friday, June 24, 2005 5:25:00 PM  
Anonymous Mike C. said...

nor shall private property be taken for public use, without just compensation.

According to this phrasing, then, obviously private property may be taken for a private use without just compensation.

Also, judges who feel that the Constitution does not guarantee a right to private property (Ginsburg, Kennedy, etc.) are in the mainstream, while those who think it does (Janice Rogers Brown, Clarence Thomas, etc.) are out of the mainstream.

Sorry for the weak attempts at humor, this decision was absolutely infuriating to me. I actually called my Senator's office (not the embarassment, the other one, I'm from Nevada) about this decision. I think that Bush could use a SC nominee's stance on this one issue to guarantee that whomever he nominates for any opening will get confirmed. The outrage on both the right and the left, from what I've seen, is that great.

Saturday, June 25, 2005 12:13:00 AM  
Blogger Perry Eidelbus said...

So true, TKC, but the Fourth Amendment was already subverted with the Patriot Act. The Eighth and Tenth were subverted simultaneously when the Supreme Court ruled it's cruel and unusual to execute criminals under 18 (I'm a strong believer in the death penalty).

I'll say bluntly that once the Second Amendment falls, the rest of the Constitution won't last long. Right now we're living under the illusion of freedom. Kelo showed that we're now at the whim of government.

You're absolutely correct, Mike. The Constitution, emphasized in the Ninth and Tenth Amendments, was intended to be a very strict document on what the federal government could do. Unless an action was specified, the federal government had no power to do it. Now all it takes is some "interpretative" judges who believe in a "living" Constitution. If Congress can invoke the Interstate Commerce and Necessary and Proper clauses to give itself authority over anything, then the Constitution may as well be meaningless.

Saturday, June 25, 2005 8:21:00 PM  

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