Tuesday, June 28, 2005

Opinions, Good And Bad

More on Kelo from the press:

Michael Kinsley-

The "takings" clause of the 5th Amendment is for conservatives what the equal protection clause of the 14th is for liberals. It wouldn't be fair to say that conservatives cherish property the way liberals cherish equality. But it would be fair to say that the takings clause is the conservative recipe for judicial activism - imposing their agenda through the courts, rather than bothering with democracy - the way they say liberals have misused the equal protection clause.

Of course, conservatives always claim to be against judicial activism. Liberals have long suspected that this was a decoy, and that once conservatives had control of the federal courts, they would twist their mustaches, laugh contemptuously and reveal the various policies they planned to impose by judicial fiat.

I cannot tell if Kinsley is being deliberately obtuse here, or if he really is this big an idiot. It would seem clear that in order for something to qualify as "judicial activism" it would require some deviation from long standing practice or precedent. That would mean there existed some case, say in the 1830's, where the Court upheld, for example, taking someone's rowboat making business and giving it to someone who makes clipper ships because that would be better for society. If it were long established by such cases that this was within the government's purview Kinsley would have a point. However, it isn't and he doesn't. It was clearly believed that the Bill of Rights curtailed this type of governmental taking. By Kinsley's "standard" upholding any portion of the Constitution would be "judicial activism" if one political party liked it more than the other. That is nonsense. Kinsley would have us believe that the "Takings Clause" was never meant to protect private property from governmental action. How could it be any other way? Kinsley tells us that the government can take your property for "public use" AND the government gets to define what counts as "public use." If this is so, obviously the "takings" clause is contentless. (Please, Michael, show me where any protection for private property remains.) So Kelo v New London effectively erases this part of the Constitution and Kinsley has the gall to tell us it was the other side that was being judicial activists?!

And Kinsley "bothering with democracy" line is the worst sort of demagoguery imaginable. The entire purpose of having a "Bill of Rights" was to protect individuals from the excesses of popular government, from the excesses of democracy. We don't let legislatures decide what religion you can be, what you are allowed to say or print. And we do not let legislatures decide what does and what doesn't count as free speech or free exercise of religion precisely because that would destroy them as rights.

Going back to my earlier "either/or" question...I'm finding it difficult to believe anyone could be deliberatelyly this obtuse.

Robert Robb-

Last Thursday's U.S. Supreme Court ruling that private property can be confiscated by government for private development stands the Constitution, as written by the founders, on its head.

Sandra Day O'Connor's dissent quotes Alexander Hamilton as saying that the "security of property" was one of the "great objects of government." That was a universally shared view among the founders. In fact, it's fair to say that the founders agreed on that principle more than any other.

That protection was given concrete reality in the takings clause of the Fifth Amendment, which states: "nor shall private property be taken for public use without just compensation."

As Clarence Thomas painstakingly points out in his dissent, by this the founders did not mean that private property could be taken for private use without just compensation. They meant that private property could not be taken for private use, period.

The majority opinion, written by John Paul Stevens, contends, however, that private property can be taken for private use so long as government perceives that the public will benefit from the change in use. Moreover, the court isn't going to get into the business of second-guessing local governments about what constitutes a public benefit or whether the change in use will result in one.

This completely reverses the intent of the founders to create a system of private property protected by government. Instead, according to the court, all property is in a fundamental sense communal. Government can take it from a private owner any time government believes that someone else would put it to a use that government prefers.

And if the government prefers wealthy people over poor people, the Supreme Court (and folks like Michael Kinsley) say "So be it."

More from Robb:

Nationally, the unwillingness of the U.S. Supreme Court to do the job the founders envisioned is leading to a crisis of liberty.

The founders intended to create an energetic but limited government. The job of the U.S. Supreme Court was to protect fundamental liberties against an overreaching government.

To the founders, there were no more fundamental liberties than private-property rights and the freedom of political speech.

In this case, the court has abandoned protecting private property against confiscation by an overreaching government. Previously, it had abandoned protecting political speech against government regulation and limitation when it upheld McCain-Feingold.

Meanwhile, the court has aggressively protected rights of its own creation, such as to an abortion or to homosexual sex.

Now, an intellectually honest argument can be made that the new rights the court has created are logically derived from the explicit rights the founders clearly established in the Constitution, and created the Supreme Court in part to protect.

But no intellectually honest defense can be made of a court that aggressively protects the derivative rights while abandoning protection of the explicit rights.

In our system of government, if the U.S. Supreme Court is unwilling to protect fundamental liberties against an overreaching government, what are a free people to do?

One thing I would advocate is for lower court judges to ignore this ruling. Treat it as being the morally indefensible position it is. Were I a judge, I would treat this ruling the same way I would have treated the Dred Scott ruling. We are all morally obligated not to follow someone else's orders to engage in fundamentally unjust activities. Were I a policeman in New London I would not follow orders to remove these people from their homes. Hell, I'm half considering going to New London and chaining myself to these people's homes. And yes, from what I have heard on the news from some of the people affected, I believe it will come to that.

I cannot fathom that self-proclaimed liberals would really sell their fundamental liberties for a place to get a latte and do pilates.

What is wrong with these people?

1 comment:

Anonymous said...

I read Kinsley's column in the Post, and besides your criticism of the piece, I just couldn't get what he was saying, from just a reader's comprehension standpoint (and I've read and understood Von Wright's Explanation and Understanding, ha ha). It's like there was a paragraph or two missing.