The Other Kennedy Curse
Michelle Malkin hit the nail on the head: your home is not your castle anymore; it’s the rightful property of the highest bidder, whoever that may be.
This is even worse than Raich v. Gonzales. This newest turkey of a case, Kelo v. New London, appears* to have held that cities may take people’s property simply to give the property to someone else who will upgrade it to earn more revenue. Once again, the four liberals did what they always do, and ruled that government can do as it damned well pleases. Once again, one of the “moderates,” Anthony Kennedy, joined them in judicially nullifying a key part of the Bill of Rights.
I don’t blame the Gang of 14 or proudly oblivious “Coalition of the Chillin’” for today’s decision, as they weren’t around the last time a Supreme Court Justice was nominated. I do blame them, however, for the fact this case is unlikely to be reversed anytime soon, as they’ve all but guaranteed any Supreme Court nominee worth nominating will be filibustered away. Chill pill worn off yet? [UPDATE: Yup.]
Orin Kerr and Uncle have more. Uncle apologizes for swearing, but he needn’t. If anything, he should apologize for not swearing more.
UPDATE: Huge roundup here.
UPDATE x2: Heh.
June 23rd, 2005 at 11:37 am
Xrlq,
You seem a little uptight.
Remember, the nuke option is still in play. There is a right time and a less optimal time to use this deterrent (if necessary). The greatest power is that which is acknowledged by all and therefore rarely used. (Packs of carnivores work this way also).
BTW, the default size for the comment screen is a little too small.
June 23rd, 2005 at 12:22 pm
Except that it’s not used rarely. Witness John Bolton, a non-judicial nominee who isn’t subject to the capitulation deal or our wine-bet, who is subject to the same unconstitutional procedure.
June 23rd, 2005 at 1:10 pm
Kelo: great for liberal intervention…
I’ll be able to count on a couple hands and feet the number of times this power will be used to enrich the likes of private developers. I would need all of your hands and feet to count the number of times this decision will be used as a precedent for …
June 23rd, 2005 at 1:17 pm
It is fine that the Dems are filibustering Bolton. He is a lightening rod for their dysfunctionalism.
The energy they expend in filibustering Bolton is a drag on their credibility and marks them as extreme obstructionists. This gives the GOP a better position to push through conservative judicial nominees.
What is the importance of US representation in the UN anyway? At best it is just another forum for discussion. At worst, it is a venue that leverages the power of tyrants and petty states against the US.
It is up to the Senate to determine what constitutes advice and consent. The filibuster remains an option because 51 Senators want to keep it. That is constitutional (as is the nuke option).
June 23rd, 2005 at 1:22 pm
This harkens back to Jezebel vs. Naboth.
June 23rd, 2005 at 2:55 pm
BTW, I agree with you that this is a horrible decision.
The Constitution is meant to insure property rights of individuals. Capitalism allows others to pay a market price for property. Here, that market price is discounted by the power of government to seize property from some without open rebellion of the majority. The government thus becomes an agent of corruption (and corrupted itself in the process).
This sort of divide and conquer abuse of power is a well known tool of would-be dictators. Government now can use the threat of seizure to silence opponents just as with an unchecked law enforcement agency such as was the case with Reno’s use of the federal government against pro-life groups using the Rico Act.
June 23rd, 2005 at 8:08 pm
Xrlq,
Know what the even more interesting part of this is? This is only the first rancid decision in what will be a series of decisions that will be collectively known as The Week The Supreme Court Angered America.
Think about the tap dancin’ on land mines SCOTUS is performing: Gonzales v Castle Rock (police requirement to enforce restraining orders), BOTH Ten Commandments cases, Kelo, Raich, and even Grokster. Merely following past precedent in the first four will ignite everyone from the Christian Coalition to Domestic Victims’ rights groups. And a decision to cover somebody’s corporate rear end in Grokster will likely change the face of tech advances in this country, and not for the good.
June 23rd, 2005 at 8:49 pm
One final thought. “Public use” is not “private use”.
Thus, the court’s decision is on its face (prima facia) unconstitutional.
Time to impeach.
June 23rd, 2005 at 9:00 pm
The funny thing is, if those 5 had any balls, they could have reached the same result in a respectable way, namely by holding that the question of what is or isn’t a “public use” is nonjusticiable. The result would be the same (New London gets to do what it wants) but the message sent would be quite different: we’re not going to strike this down, but we’re not going to bless it as constitutional, either.
Or, if they really had balls they could have taken the hypertextualist position, and pointed out that the Fifth Amendment doesn’t say anything about takings for private use at all!
June 23rd, 2005 at 11:00 pm
No person … 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.
Provides a protection against government seizure of all private property except for public use given due process and just compensation.
I see no provision for the seizure of private property for private use unless that provision is in another amendment or the test of the Constitution itself.
Either a use is public or private. It is a binary condition according to the usage in the text of the Constitution. In other words, it is owned by the people for the people or it is not.
June 23rd, 2005 at 11:14 pm
My point exactly. One could, consistently with the literal meaning of the Fifth Amendment, conclude that government is only required to provide just compensation when it takes private property for public use; if it takes it for any other purpose, it need not provide any compensation at all.
June 24th, 2005 at 12:14 am
Xrlq,
I thought that might be your point. So, this phrase:
nor be deprived of life, liberty, or property
That covers it.
June 24th, 2005 at 6:46 am
Actually, you cut that one off – it ends with “without due process of law.” If that prohibited takings without just compensation, it would prohibit taxation generally.
June 24th, 2005 at 6:56 am
This just makes you want to scream, and scream at Kennedy, the guys got no principles other than “what I feel like goes,” isn’t that a great interpretation of the constitution there. (See e.g. Raich, Lawrence, and Kelo) Good thing those liberals stopped Bork or we might have got a justice with half a ….. oh nevermind.
June 24th, 2005 at 7:49 am
Is it just me or has no one stated this nice little tidbit yet…After Kelo was announced the DJ proceeded to lose 200 pts. (I know correlation is not causation but still).
June 24th, 2005 at 7:53 am
[...] tics Legal Issues — tgirsch And I agree with Thomas, Scalia, Rehnquist, and Xrlq (except of course, in the last case, for the anti-liberal vitriol). [...]
June 24th, 2005 at 12:44 pm
Yeah, that’s how the four liberals always rule. Like when the government wants to put up religious displays on government property, or like when the government wants to execute the mentally incompetent or minors, or like when the government wants to tell women what they can and cannot legally do to their bodies. Yep, those damn liberals always rule that the government can do as it damned well pleases…
June 24th, 2005 at 1:11 pm
Or, if they really had balls they could have taken the hypertextualist position, and pointed out that the Fifth Amendment doesn’t say anything about takings for private use at all!
Or, to be more annoying, doesn’t say private takings need to be compensated.
[My point exactly. Or, if the government wanted to be really, really, really annoying, it could point out that private takings, if compensated, need not be justly compensated, and then hand every private-eminent-domain victim a $15 Amazon certificate as his unjust compensation. -X.]
June 24th, 2005 at 1:41 pm
Funny you should raise those examples, only one of which (religious symbols) has anything at all to do with the written constitution they are pretending to enforce, another of which is a gross misstatement of the court’s own rulings (government can and does legally tell men and women alike what to do with their own bodies), and all of which are in fact prime examples of government doing as it damned well pleases. The only real difference is that in these cases it’s the court itself, rather than one of the elected branches, that’s doing as it damned well pleases.
June 24th, 2005 at 1:58 pm
I didn’t say anything at all about Constitutionality, now did I? I merely pointed out examples where the “liberals” on the court ruled exactly the opposite of what you claimed they always rule. Had you said that the liberals always rule in a way you don’t like that probably would have been a bit more true and a lot more honest.
June 24th, 2005 at 2:36 pm
Xrlq,
Right, there has to be “due process of law”. So, since the prohibition is at the Constitutional level, the allowance must also be at this level (and all law enforcing the provision then must be derivative of this allowance).
There is an allowance for public use, but none for private use. Thus, the confiscation of private property by the government for private use is prohibited by the 5th amendment.
I used a similar reasoning about life and the Schiavo affair i.e. that the government can only take a life for commission of a crime after at least the indictment by a jurty of peers and whatever other coditions are laid out by derivative laws. It cannot take a life by fiat. Thus, Greer’s edict was material to a conspiricy to murder as well as an abuse of office.
Yes, I am calling Schiavo and Greer murderers. I indict them together with Felos.
June 24th, 2005 at 3:41 pm
Re-read the Fifth Amendment. There is nothing specifically authorizing the government to take property for public use; only a prohibition on doing so without just compensation. The due process clause, by contrast, does not distinguish public vs. non-public use, nor does it say anything at all about what purpose is served by taking people’s property after due process. If the due process clause was read to prohibit takings for non-public use, it would also prohibit takings for public use, as well. Conversely, the takings clause says nothing about due process, so government would be prohibited from taking property without just compensation even after due process. The end result would be that government could never take property from anyone, unless they had been tried and convicted of a crime, and even then they’d have to defeat the purpose of the punishment by providing the defendant with just compensation for the property in question. That will not stand.
I don’t think this has anything to do with the Schiavo case at all.
June 24th, 2005 at 4:03 pm
Here is the 5th Amendment in its entirety:
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 offense 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.
The bolded clause specifies that private property may not be taken without due process of law. This prohibition is at the level of the Constitution, so any exception to this prohibition (that may be IAW due process) must derive from a Constitutional allowance.
Such an allowance immediately follows, but only for “public use”. There is no exception for the taking of private property for private use–that is prohibited specifically.
One condition of taking for public use is that there must be just compensation. Fine. For our purposes it might just as well specified 10 mules and a blanket for every hectacre of arable land. It doesn’t matter. We are only concerned with the prohibition against taking for private use (nonpublc use). Just compensation is a condition of due process. So is the condition that the property must be for public use. Other conditions may be added to further restrict the seizure by subordinate legal entities. However, there is no nonconstitutional provision for further exceptions to the general prohibition nor is it permissable to weaken what has been minimally set forth as due process.
There is no due process provision for taking for nonpublic use–it is prohibited.
Finally, use means use. Use does not mean benefit. Either the use is public or private. One or the other. Furthermore, the use is not restricted. If the land is taken for public use, the public may use it–all equally. Taking of private property to benefit a selected few “public” is prohibited.
The conditions are not independent; they are structured logically. Exceptions are minimal and prohibitions are maximal. Together, the amendment specifies a minimal allowance to the government of sovereignty granted by the people.
June 24th, 2005 at 4:30 pm
Nope, you’re misreading both clauses. Saying that a public taking can’t be made without just compensation is not the same as saying it can be made with one. If the due process clause meant what you suggest, it would prohibit public and private takings alike; the only effect of the takings clause being that a public taking without just compensation would be two ways unconstitutional instead of one.
June 24th, 2005 at 5:12 pm
Xrlq,
What I am saying is for the prohibition to have any meaning whatsoever, the exception for due process must be provided for by the text of the Constitution. The next phase is one exception (and I know of no others).
So, it is to say, “Johnny, you may not have ice cream unless it is an appropriate type; chocolate is appropriate if it is Godiva chocolate.”
“Mommy, then I can have vanilla ice cream?”
“No, I said nothing about vanilla being appropriate”
“I know that Mommy, so I can have it right?”
“No, Johnny, I said you can have only an appropriate type ice cream. Since I said nothing about vanilla and since I am the sole authority on appropriateness of ice cream, you may not have vanilla. Otherwise, I would not have said that you may not have ice cream with that one cavaet.”
“But Mommy, I thought you just meant for me not to have strawberry-yuck ice cream.”
“No, if I wanted to specify only what you may not have (and what good sense would that make since even Baskin Robbins alone has 32 proprietary flavors?) I would have said that preceisely and nothing about ice cream in general.”
“But Mommy …………….”
“OK, to hell with it all. Just get whatever you want. I’m going to Aruba. But first, I’m going to stop by the bank and empty out your college savings account. I’ll be sipping Pina Coladas while your other siblings do a Lord of the Flies remake on your ice cream filled porky butt. Hope you like grass skirts and barbecue.”
June 24th, 2005 at 6:01 pm
Your analogy does not work because it assumes the due process clause and the takings clause are meant to be read together. They’re not, any more than the grand jury and double jeopardy clauses are. They each address separate concepts, and must be considered separately, as in:
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.
No person shall be subject for the same offense to be twice put in jeopardy of life or limb.
No person shall be compelled in any criminal case to be a witness against himself.
No person shall be deprived of life, liberty, or property, without due process of law.
Private property shall not be taken for public use, without just compensation.
Thus, a better analogy for your ice cream argument would be if Johnny’s mother said on one occasion that he couldn’t have any ice cream unless the flavor was appropriate, and later said on a different occasion that listening to heavy metal music was inappropriate, from which Johnny gleaned that he could eat any kind of ine cream he wanted while listening to hip-hop.
June 24th, 2005 at 6:24 pm
Its true that I read the clauses together. But then again, I allow that due process to an exception of a prohibition must be found in the Constitution–anywhere.
The fundamental point of the analogy is that for the prohibition to mean anything, exceptions must be limited. Here they are limited by a procedure called “due process”. The source point of the procedure must be a Constitutional allowance. The allowance delimites the boundaries of what else may be derived as an exception to a prohibition. (You can think of a graphic to go along with this — its basically a set relation of inequalities).
June 24th, 2005 at 6:33 pm
So if listening to hp-hop is inappropriate, now there are fewer opportunities for Johnny to eat the permissible ice cream–Godiva chocolate.
Now, he cannot hip to the hop to the hippy hippy hop and he certainly cannot hoppity hip while doing anything otherwise permissible (like eating Godiva chocolate ice cream).
Of course, Johhny is hipping and hopping around a camp fire right now while his siblings are wondering what to skewer now that the refigerator is empty. Good going Johnny!
June 24th, 2005 at 6:41 pm
One last thing.
By listing a condition on an exception to a prohibition, the text is clear that the exception exists by inference. This does not imply the existence of other unlisted exceptions.
So there exists a public use exception to the taking clause. This is consistent with the taking clause which allowed that there may be exceptions but that they are circumscribed by due process considerations i.e. that at least they must be provided for under the Constitution to exist.
June 24th, 2005 at 10:26 pm
Check this out, what’s left of the liberal democrats in Texas are all up in arms over Kelo as well, because it helps big corporations and developers!
“We Need a Mall Where Your House Is”
http://www.offthekuff.com/mt/archives/cat_legal_matters.html#005689
June 26th, 2005 at 9:46 pm
Had the Supreme Court overruled this, wouldn’t this make it common for envirowacko groups to purchase tiny plots of land to stop many large development projects? As intoxicating as the free market thinking is, it’s just not true that everybody sells to the highest bidder. Some people would sell their prime land at a heavy discount to jackwad lawyer groups (See: Sierra Club) just out of spite. Then what?
June 27th, 2005 at 5:52 am
That would be fine. Let anyone put their money where there mouth is.
Would they be able to stop developments? No. The developments would happen at the locations where land can be bought. Even the environmentalists would have to wonder, “Sould we sell this land here for such a high price in order to fund our activities and land buying somewhere else?”
That is of course, if they ‘know’ where some develeopment will occur. And if they know, why wouldn’t the land owner just keep the property to sell himself. Land is bought by the parcel, not the square inch.
February 25th, 2007 at 2:01 pm
[...] Xrlq points to a humorous commentary, which contains an idea for some just deserts. Whenever a politician votes [...]