The Discerning Texan
All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
-- Edmund Burke
Saturday, June 25, 2005
The Supreme Court: Reflections on an Autocracy
Clarice Feldman writes eloquently regarding the Supreme Court's earth-shattering Kelo decision the other day, from which I will be quoting extensively, because we as a country cannot afford more of the same when it comes to an activist Judiciary.
I've already discussed at length my opinion that this decision was the first step to the US becoming a collectivist/communist totalitarian state. And Feldman's excellent American Thinker piece adds more concrete reinforcement to this supposition:
One week before the end of its term, the Supreme Court has handed down a decision, Kelo v. City of New London, which greatly weakened the protection of property rights explicitly recognized in the Constitution. At issue is the power of governments to confiscate homes and other real estate, and set a price deemed "fair" -- all without the owner's consent.
With one or more vacancies on the Court looming, and with the prospect of bitter confirmation battles looming, the public may start thinking about property rights as part of our civil rights, and alter the terms of the debate over the "judicial mainstream."
On April 20,2000, Judge Janice Rogers Brown addressed the Federalist Society. As we consider yesterday's decision, it's worth our time to consider her thesis on that occasion:
"[T]he sheer tenacity of the collectivist impulse--whether you call it socialism or communism or altruism--has changed not only the meaning of our words, but the meanings of the Constitution and the character of our people."
She noted further, in this notable speech:
"Protection of property was a major casualty of the Revolution of 1937...The court drew a line between personal rights and property rights or economic interests, and applied two different constitutional tests. Rights were reordered and property acquired a second class status. If the right asserted was economic, the court held the Legislature could do anything it pleased. Judicial review for alleged constitutional infirmities under the due process clause was virtually nonexistent. On the other hand, if the right was personal and 'fundamental' review was intolerably strict."
Further down in Feldman's essay, she addresses the question of the Fifth Amendment and its "just compensation" language:
The Supreme Court ignored the clear words of the Constitution which states in the Fifth Amendment:
"nor shall private property be taken for public use without just compensation."
But we are talking about an economic right. So "behind is in front" and voila "public use" as if by magic, has been transformed into "public purpose."
Once, taking was permitted only if the state had an important need for the property, such as a road or bridge which everyone needed, and the property owner was justly compensated. Today, your property can be taken if the local authorities determine there is a more economic use to be made of your property by somebody else - a developer, an employer, or a tax-generating company - and they need the extra tax money they will receive if somebody else gets your house.
This enlargement of the state's power encourages not only fiscal profligacy but theft as well. Theft? Didn't the Court say you should get "just compensation"? Think about it. Once the property is seized and given to another private party, you have no recourse if (a) the project is never undertaken or (b) the government miscalculated and the new use is not more economically valuable to the community. In fact, once property is transferred, in the absence of fraud or bad faith, there is no easy way apparent to get your property back, even if the new owner changes his mind, goes broke, or gets a better offer.
And what about the "just compensation" requirement? UCLA Law Professor Stephen Bainbridge explains why fair market value in Kelo "is a justly inadequate safeguard on government power".
"First, it fails to take into account the subjective valuations placed on the property by people whose families have lived on the land, in at least one case, for over a 100 years. In other words... the government will be able to seize land at a price considerably below the reservation price of the owners. Second, unlike the prototypical eminent domain case, in which the land is seized to build, say, a school or road, in this case the city is using eminent domain to seize property that will then be turned over to a private developer. If this new development increases the value of the property, all of that value will be captured by the new owner, rather than the forced sellers. As a result , the city will have made itself richer (through higher taxes) , and the developer richer, while leaving the forced sellers poorer in both subjective and objective senses."
Unless this decision is reversed further down the road by a newly-reinforced, strict Constructionist Court; a Court which respects the Constitution and the intent of the Founders, and resists the impulse to create "law" out of the thiaccordingording to its every whim, then the Kelo decision may be have left us only one recourse to this vile decision handed down by activist justices last -- the State legislature:
But the Court does leave open some recourse from this decision: the possibility of state legislation to forbid property being taken for "public purpose." Every reader who lives in a state which does not enjoy such protection should work for such a clear repudiation of the practice of forced taking of property for use by private interests. In the meantime, it is anticipated that on Monday one of the Supreme Court judges will announce his/her resignation at the end of the term, and the battle for a confirmation of replacement will begin.
The Senate Democrats who held up the confirmation of Judge Brown to the US. Court of Appeals for the District of Columbia for two years, upon the opposition of left-wing wing groups like People for the American Way ( Norman Lear) who called her a "loose cannon" who "lacked the appropriate commitment to fundamental constitutional rights principles," have offered the President a fool's deal. They want him to consult with them before nominating anyone. (Something about that offer reminds me of an email I got saying I'd won a foreign lottery and to claim it should prepay the vendor's ten percent which, of course, would be rebated upon receipt of the award, though I should keep the whole thing quiet to avoid confusion with other people claiming the same prize.)
My guess is that Justice Thomas, whose dissent most clearly challenges the majority opinion, and Judge Brown, whose views suggest she'd have joined him had she been on the Court, may fairly be regarded as champions of a view of property rights deeply cherished by Americans. The notion that a man's home is his castle, is deeply ingrained in the American psyche, as is the American dream of home ownership. They are mainstream in a way that makes intuitive sense to Main Street.
Let us keep in mind, as the upcoming confirmation battles over Bush's Supreme Court nominees loom ahead, that we have as a country reached the point of no return if we do not stem the tide of dictatorship by judicial fiat. The importance of Bush making the right decisions for his USSC appointments cannot be overstated; indeed it may be the one hope our country has left of realizing the dream of its founders, and of all other patriots who have laid down their lives for this noble experiment since the 1770's. We owe it to them, and to the ones who will follow us, to get this one right.
UPDATE: The speech in Chicago by Judge Janice Rogers Brown, which was referenced above, and in Clarice Feldman's essay, is pricelesss in itself; in fact I was so moved by it that I will be posting the complete text of this shortly in another post.
But for those who are impatient for a truly profound dose of truth, I would urge you to visit the link now. And, as you read Ms. Brown's words, keep in mind that this is the woman that the Democrats fillibustered for almost two years....this is who they do not want anywhere near the Supreme Court. Once you have read it and considered this fact, then, perhaps, it will begin to dawn on you the enormity of what is at stake here. That is my hope.
I've already discussed at length my opinion that this decision was the first step to the US becoming a collectivist/communist totalitarian state. And Feldman's excellent American Thinker piece adds more concrete reinforcement to this supposition:
One week before the end of its term, the Supreme Court has handed down a decision, Kelo v. City of New London, which greatly weakened the protection of property rights explicitly recognized in the Constitution. At issue is the power of governments to confiscate homes and other real estate, and set a price deemed "fair" -- all without the owner's consent.
With one or more vacancies on the Court looming, and with the prospect of bitter confirmation battles looming, the public may start thinking about property rights as part of our civil rights, and alter the terms of the debate over the "judicial mainstream."
On April 20,2000, Judge Janice Rogers Brown addressed the Federalist Society. As we consider yesterday's decision, it's worth our time to consider her thesis on that occasion:
"[T]he sheer tenacity of the collectivist impulse--whether you call it socialism or communism or altruism--has changed not only the meaning of our words, but the meanings of the Constitution and the character of our people."
She noted further, in this notable speech:
"Protection of property was a major casualty of the Revolution of 1937...The court drew a line between personal rights and property rights or economic interests, and applied two different constitutional tests. Rights were reordered and property acquired a second class status. If the right asserted was economic, the court held the Legislature could do anything it pleased. Judicial review for alleged constitutional infirmities under the due process clause was virtually nonexistent. On the other hand, if the right was personal and 'fundamental' review was intolerably strict."
Further down in Feldman's essay, she addresses the question of the Fifth Amendment and its "just compensation" language:
The Supreme Court ignored the clear words of the Constitution which states in the Fifth Amendment:
"nor shall private property be taken for public use without just compensation."
But we are talking about an economic right. So "behind is in front" and voila "public use" as if by magic, has been transformed into "public purpose."
Once, taking was permitted only if the state had an important need for the property, such as a road or bridge which everyone needed, and the property owner was justly compensated. Today, your property can be taken if the local authorities determine there is a more economic use to be made of your property by somebody else - a developer, an employer, or a tax-generating company - and they need the extra tax money they will receive if somebody else gets your house.
This enlargement of the state's power encourages not only fiscal profligacy but theft as well. Theft? Didn't the Court say you should get "just compensation"? Think about it. Once the property is seized and given to another private party, you have no recourse if (a) the project is never undertaken or (b) the government miscalculated and the new use is not more economically valuable to the community. In fact, once property is transferred, in the absence of fraud or bad faith, there is no easy way apparent to get your property back, even if the new owner changes his mind, goes broke, or gets a better offer.
And what about the "just compensation" requirement? UCLA Law Professor Stephen Bainbridge explains why fair market value in Kelo "is a justly inadequate safeguard on government power".
"First, it fails to take into account the subjective valuations placed on the property by people whose families have lived on the land, in at least one case, for over a 100 years. In other words... the government will be able to seize land at a price considerably below the reservation price of the owners. Second, unlike the prototypical eminent domain case, in which the land is seized to build, say, a school or road, in this case the city is using eminent domain to seize property that will then be turned over to a private developer. If this new development increases the value of the property, all of that value will be captured by the new owner, rather than the forced sellers. As a result , the city will have made itself richer (through higher taxes) , and the developer richer, while leaving the forced sellers poorer in both subjective and objective senses."
Unless this decision is reversed further down the road by a newly-reinforced, strict Constructionist Court; a Court which respects the Constitution and the intent of the Founders, and resists the impulse to create "law" out of the thiaccordingording to its every whim, then the Kelo decision may be have left us only one recourse to this vile decision handed down by activist justices last -- the State legislature:
But the Court does leave open some recourse from this decision: the possibility of state legislation to forbid property being taken for "public purpose." Every reader who lives in a state which does not enjoy such protection should work for such a clear repudiation of the practice of forced taking of property for use by private interests. In the meantime, it is anticipated that on Monday one of the Supreme Court judges will announce his/her resignation at the end of the term, and the battle for a confirmation of replacement will begin.
The Senate Democrats who held up the confirmation of Judge Brown to the US. Court of Appeals for the District of Columbia for two years, upon the opposition of left-wing wing groups like People for the American Way ( Norman Lear) who called her a "loose cannon" who "lacked the appropriate commitment to fundamental constitutional rights principles," have offered the President a fool's deal. They want him to consult with them before nominating anyone. (Something about that offer reminds me of an email I got saying I'd won a foreign lottery and to claim it should prepay the vendor's ten percent which, of course, would be rebated upon receipt of the award, though I should keep the whole thing quiet to avoid confusion with other people claiming the same prize.)
My guess is that Justice Thomas, whose dissent most clearly challenges the majority opinion, and Judge Brown, whose views suggest she'd have joined him had she been on the Court, may fairly be regarded as champions of a view of property rights deeply cherished by Americans. The notion that a man's home is his castle, is deeply ingrained in the American psyche, as is the American dream of home ownership. They are mainstream in a way that makes intuitive sense to Main Street.
Let us keep in mind, as the upcoming confirmation battles over Bush's Supreme Court nominees loom ahead, that we have as a country reached the point of no return if we do not stem the tide of dictatorship by judicial fiat. The importance of Bush making the right decisions for his USSC appointments cannot be overstated; indeed it may be the one hope our country has left of realizing the dream of its founders, and of all other patriots who have laid down their lives for this noble experiment since the 1770's. We owe it to them, and to the ones who will follow us, to get this one right.
UPDATE: The speech in Chicago by Judge Janice Rogers Brown, which was referenced above, and in Clarice Feldman's essay, is pricelesss in itself; in fact I was so moved by it that I will be posting the complete text of this shortly in another post.
But for those who are impatient for a truly profound dose of truth, I would urge you to visit the link now. And, as you read Ms. Brown's words, keep in mind that this is the woman that the Democrats fillibustered for almost two years....this is who they do not want anywhere near the Supreme Court. Once you have read it and considered this fact, then, perhaps, it will begin to dawn on you the enormity of what is at stake here. That is my hope.
