How much for your kidney? And while we’re at it, you’re kind of cute, how much for a little fellatio?
The statute in Midkiff addressed the falsity of the “everything is for sale” theory. The trusts had accumulated enormous property holdings through speculation and had no desire to sell. If there was a price that they would accept, it would have been astronomical because there really wasn’t much land for sale–most of it was held by a few rich entities. They were making way too much money on the leases to agree to fee conversions.
Does this mean that there is no principled distinction between a statute allowing people who live on land to buy it from the lessor and a condemnation decision to take a person’s property–property that has unique value to the current owner other than as an investment? There are plenty of ways to do this, but not many would be free of a charge of judicial legislation.
It would be better to overrule *Berman *and Midkiff, and retreat to a true public use requirement. Although, as I pointed out above, this too could be considered judicial legislation.
Boy, if there were only some kind of substantive due process out there we could subject takings to intermediate or even strict scrutiny.
Point taken – but if the idea is to provide affordable decent housing, condemnation on safety standards only stops the owner from renting it out. He still owns a slum building, albeit one he can’t rent out as housing. I fail to see much improvement in vacant decrepit apartment buildings over occupied decrepit apartment buildings.
To take it into municipal ownership by condemnation requires the use of eminent domain in one form or another. And my observation is that it could only be taken for a clearly public purpose, i.e., to build something like a swimming pool, museum, fire station, dog pound, etc., of value to all citizens, not to have better housing built on the site.
The idea of “fair market value” as applied to condemnation/eminent domain is that the forced seller must receive an unbiased value of what the property would go for in an unforced sale. Sentimental value or his personal feelings do not apply, but a forced sale below fair market value is clearly illegal.
I’m not sure we’re talking about the same thing. I’m not disputing the authority of the governmnet, per the constitution, to take property thru eminent domain. Clearly, one stubborn landowner could force an absurd price on the government if we used the “everything is for sale at the right price” concept. I’m only talking about it in the particular case of transfering property from one private entity to another private entity.
In Poly’s example, if the government decides to build housing for low income families (assuming the government retains ownership), that’s not a case of transfering from private entity to private entity.
I like your vain of thought if only as a devil’s advocate to the issue. I don’t think I took the quote out of context (unless the Washington Post did). While you are technically correct about the constitutional words “public use” (absent the words for “private use”), I still defer to what O’Conner Said in my quote of her: “Today the Court abandons this long-held, basic limitation on government power,”
She is acknowledging the original intent and practice of this clause in the Constitution. It should be noted that the broadening of this clause to allow for urban redevelopment was also a SC decision (1954). It specifically addressed the desire of local governments to deal with urban blight. Nobody challenged this on the scale of the recent decision because there wasn’t a large voice from the private sector involved. People didn’t get excited about defending slum lords. It is easy to justify (in one’s mind) that a slum lord has no vested interest in his/her property beyond that of investment which is is also easy to calculate for compensation. There is no intrinsic value involved.
Yes and no. Their “interpretation” of public use effectively removes it as a federal (blanket) right and not only allows for State interpretation, it requires it. As it stands now it is open season on personal property unless acted upon by the State. Not only is there no incentive to do this, it is to the advantage of people (with a government mindset) to expound on this increase in power, which is what this is all about. POWER.
Oddly enough, I agree with this point. But if the Equal Protection Clause is twisted beyond recognition to achieve goals you like, what is the principled basis to complain when the same process is used to achieve goals you don’t like?
I’d gladly trade the existence of Bush v. Gore for getting rest of the absurd EP cases out there.
Would you distinguish which Equal Protection cases are “absurd” and why you draw that classification scheme? This is not adversarial but in search of information. There are a number of cases I consider poor law, founded in something that I may agree with on an ethical basis but do not consider good Constitutional law. I want to understand your perspective on this, and why you consider some EP cases “absurd”; I might possibly agree with you.
You were fine. And on rereading the opinion and the article, I don’t think she is being quoted out of context, though the quote is pretty selective.
I think she is being disingenous to say that this opinion washes out a long-existing rule. The only way she can make that claim is to distinguish two cases. And she does an unconvincing job of that. But even if she were correct about the cases being distinguishable, that doesn’t mean that by refusing to distinguish them, the court has obliterated any kind of distinction.
Ok, well let me give you a little more to think about. The framers didn’t think that the Fifth Amendment applied to the states at all. http://www.usconstitution.net/consttop_bor.html (founders did not intend the Bill of Rights to apply to state action); As O’Connor admits, the Fifth amendment was only made applicable to the states through the Fourteenth Amendment. And then only through an act of interpretation, which was controversial, http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights), and looks as much like judicial legislation as substantive due process does. In fact, the Court relies on the same words to incorporate the Bill of Rights as it did to find a right to abortion.
Well, if you count these two sentences as acknowledging the original intent:
They are way at the end, and don’t seem to be her rationale for her opinion.
Here, let’s get our hands a little dirty and look at the actual opinion:
(Internal citations omitted.)
She’s ok with incorporation, and wants to give every word independent meaning, but again, doesn’t really pay attention to the fact that the clause doesn’t say anything about public use being a requirement.
(Internal citation omitted.)
Suggests that Hamilton would agree with her interpretation (despite the fact that the Bill of Rights did not apply to the states) but only cites a broadbrush statement about property rights.
Again, she is departing both from the text of the document and the accepted intentions of the framers.
Even she agrees that use-by-the-public is not the sine qua non.
Ok. So she likes some language in the two cases, and despite the fact that the language was honored in its breach there, and not necessary to the holding, she fastens onto those words.
But,
She admits that *Berman *and *Midkiff * control, but seeks to marginalize the offending language.
Still believe her when she claims that the court is abandoning long-held limitations on takings power?
This was apparently th practice at the time the constitution was made. What’s wrong with it now?
I never specifically responded to the OP, and I just noticed after the point of the thread appears permanently shifted.
I agree we will probably see extraodinary circumstances invoked.
Your prediction is unverifiable because Bush will appoint whomever he appoints and he only gets one appointment so far. It would be an interesting test case he appointed Ralph Nader or Larry Tribe, just so he could say he told us so. But we all know that’s not gonna happen, right?
This has gone on for a fair long time with the production of a lot more smoke than light. I might as well add my little puff of smoke to the general smug.
Appointments to the US Sup Ct have always been political. Without exception. From the appointment of John Jay, to John Marshall, to Felix Frankfurter, to Clarence Thomas. Somebody was looking to get a court that would be inclined to rule on questions they had an interest in the way they wanted. Sometimes it has been done by stealth, as when Justice Thomas disavowed any particular inclination on any number of questions, and the proponents got just what they wanted. Some times in has been in the expectation that the nominee would be cooperative and there has been disappointment as and a sense of betrayal, as in the case of Earl Warren and the present Justice Kennedy. Sometimes the nominee has been a surprise independent thinker, as with Oliver W. Holmes, Jr. With very few exceptions justices of the US Sup Ct are not nominated because they are the best jurist and legal scholar available. They are nominated as a means to an end.
Right now the President is in a bind. The religious reactionaries think they won the White House for George Bush and got him a compliant Congress. Neither the President nor the GOP Congressional leaders have done anything to disabuse the religious reactionaries of that notion. Clearly the Dobsons and the Robertsons and the Christian Collation and the Right to Life people are calling in their IOUs. What they want is, first and foremost, a new justice who is pledged to vote to overrule Roe v. Wade. They have already made it known that they will not accept the Attorney General as a nominee. The President has no viable option except to honor the religious reactionaries wishes. The alternative is the dissolution of the unlikely alliance between big money, big religion and nativism that makes up the core of the Republican Party and had given it pretty much full control of the legislative and executive branches of the federal government.
The appointment of a new justice hostile to Roe V. Wade for the very purpose of removing constitutional protection for abortion, even regulated and restricted abortion, will necessarily and inevitably ignite a political firestorm and must be regarded by even the most partisan an “extraordinary circumstance.” Let me suggest that the appointment of just anybody will not ignite that political battle. The nomination of a person, man, woman, Black, Latino, or what have you, likely to join with the four serving justices who seem to be willing, if not eager, to overturn the 1973 case, for the very purpose of doing so will do it.
I find it interesting that our friend chose to raise this topic in this particular formulation – that Democrats will filibuster any person the President nominates. The proposition framed like that is clearly a provocative statement that tends to set up a straw man and dig in a pre-established defensive position to be used when the President, in obedience to the demands of the religious reactionaries, does appoint someone committed to overrule Roe v. Wade. Whether Democrats will filibuster anyone remains to be seen. That they will, and must, filibuster anyone sent to the Senate as a stalking horse on the abortion issue is a foregone conclusion and not worth arguing about.
The real question for discussion is whether the President will send a nominee that the Senate can accept with a minimum of fuss over the objections of the religious reactionaries. My bet is that he will not do it. My guess is that the President is looking for a fight and that this one came at him a little sooner than he expected. My guess is that the most important thing to the President is the preservation of the collation of strange bedfellows that makes up the grenidier guard and soul of the Republican Party.
Exactly. If Bush shows even the faintest hint of compromise with the Democrats on this one, the religious reactionaries are going to react just like they did when Jeb Bush didn’t send the National Guard in after Terri Schiavo–they’re going to start to feel that maybe the President doesn’t share their convictions, and that maybe they’re being pandered to.
At the same time, 65% of Americans–and 47%, a plurality, of Republicans–do not want Bush to appoint a Justice who will overturn RvW. So if he nominates someone the Dobson crowd will be happy with, he may have a hard time getting the moderates to go to the mat with him.
That’s why this is going to be ugly as hell. On the upside, there’s a good chance it could tear the Republican party apart.
This isn’t true at all. The language that the MA Supreme Judicial Court based its decision on was an ammendment to the MA state constitution that was passed, IIRC, in the early to mid 1980s.
Also, they didn’t force the legislature to pass a law allowing gay marriage, and I believe that the legislature has not done so. They stated what they found the law to be, and ruled that if the legislature did not act sooner, after a stay of 180 days it would be unlawful for towns to deny marriage licenses based on the genders of the license seekers.
I’m not going to say that this is or is not legislating from the bench, as I think that would depend on the equal rights clause in the the MA state constitution, whose wording I’m not familiar with, but, to be fair, I’ve heard was passed originally on the understanding that it would not require gay marriage.
Just impatient. CFR is an important issue to me – more to the point, American plutocracy in general is an important issue to me, and I think the role of money in American elections (much, much greater than the role of money in practically all other democracies’ elections) is the most important, 900-pound-gorilla-scale element of the problem.
I won’t debate the issue with you (I agree). But I was just teasing about the worried part. I was referring to threads like this and the one that it refers to.
It may or may not pass the legislature again. Last time, it only passed by a slim margin, and I think that the opposition to the ammendment has picked up three new legislators in the intervening elections. And even then, the ammendment that passed included the provision that gays be allowed to form civil unions with all the protections and benefits of marriage. Proposed ammendments outlawing full marriage rights and either making no provision for civil unions or allowing the legislature to define civil unions at a later date failed.
Another thing complicating the road to the ammendment is that the current ammendment, which must pass the legislature once more with a simple majority, might be abandoned by legislators who don’t want civil unions. There is currently a petition in the works for a flat out ban on gay marriage, endorsed by the governor, among others. If it gets enough signatures, it only need 25% of the legislature’s approval to put it on the ballot (I’m not sure if it needs it twice or once, but the earliest it could be on the ballot is 2008, from what I’ve read). The defection of the most die-hard opponents of gay marriage (in favor of waiting for a “no compromises” ammendment) in the legislature, combined with the slim majority they already have, could easily tank the current proposed ammendment.
Even if it passes the legislature, the ammendment will then have to be voted on by the people. The most recent polls I’ve seen (which I can’t find a cite for, but here are two from 2003 showing similar results, even before any gay couples legally married in this state) indicate that such an ammendment is supported by less than half the electorate. As more and more gay couples legally marry, assuming that the state remains free of God’s wrath, I think it’s likely that support for gay marriage will increase.
All in all, I think “on track” to pass is a highly dubious characterization.
Since you seem to be a betting man, and I think I recall that you are a fan of a good bottle of scotch, I’m willing to stake a bottle in the $100 - $120 range on gay marriage in my state withstanding these attempts. Of course, I’m counting on O’Connor’s replacement being the sort of strict constructionist that would refuse to strike down the MA court’s decision as a violation of DOMA (which, although I passionately support gay marriage, I’m more opposed to on states’ rights grounds, and I think you would agree there). I would propose that any wager be null and void if SCOTUS expands the federal government’s powers into the arena of defining marriage.
On a completely different note, I think that the recent decision on eminent domain is far from being an instance of “legislating from the bench”. As O’Connor notes in her dissent (I’ve only read her dissent, some of Thomas’s, and skimmed the majority opinion), the courts have generally given the legislative branch (of the states, primarily), a wide berth on the issue of “public use”. To extend this berth further, to the point of, IMHO, eviscerating, if not nullifying, the “public use” clause, is judicial restraint, if anything. Actually, as I see it, they are allowing the legislative branch more latitude than the Constitution allows, which can hardly be seen as judicial activism. They’ve pretty much denied the federal judiciary any role in eminent domain cases.
Certainly, SCOTUS did not create a new law here. If anything, Connecticut created a new law when it allowed eminent domain takings for purposes only tangentially related to public use. I think both liberals and conservatives see judicial activism where they disagree with the court’s rulings. Personally, I try not to think of things in those terms. Correctly interpreting the constitutionality of something is good, IMO, regardless of whether or not it means being “activist”. Of course, there are huge variances in the ways different people interpret the Constitution, and I think Bush ought to replace O’Connor with someone of a similar attitude towards constitutional interpretation as her. Maintain the balance, as far as that goes.
Bolding added. We’ve gone over this before, including my pointing you to links that should have been informative, but obviously to no effect. So I’ll ask again: Where did you get this idea that there’s going to be *anything * passed in MA?
