Tuesday, June 23, 2015

Another Anniversary.... Another Nail in the Coffin of the Constitution...

This is the tenth anniversary of Kelo vs New London decision.  A testament to the progressive contempt for private property rights and the stupid and mindless conservative demands for judicial restraint.

As for Justice John Paul Stevens (who wrote the majority opinion), he remains unrepentant about his central role in the Kelo debacle. In fact, in a 2011 speech, Stevens lashed out at several of his critics, arguing that Kelo remains perfectly justifiable because it “adhered to the doctrine of judicial restraint” and was rooted in “Justice Oliver Wendell Holmes’ broad reading of the text of the Constitution—which allows the states the same broad discretion in making takings decisions that they possess when engaging in other forms of economic regulation.”

But why should the Supreme Court adhere to Justice Holmes’ distructive interpretation? Why not just follow the actual text of the Constitution? After all, Holmes is the same justice who once wrote, “a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell.”

Of course 80% of the population disagreed with the court’s decision…  I guess they just aren’t the dominant forces Holmes was talking about. Perhaps the general population isn’t at all what the string pullers of progressivism care ultimately about ….   I could only dream of setting up a ‘better use’ business that would put Justice Stevens on the street…(and actually seeing it happen)

Interestingly he blasted Roberts over the Citizens United ruling by saying : “The voter is less important than the man who provides money to the candidate,” he said. “It’s really wrong.” ….  While somehow finding that it is alright for the state to remove someone from their home and deliver it up to some other citizen (or well financed individual) who promises to deliver more taxes to the state … thus qualifying the state seizure as being ‘public use’.


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  2. To this day, I remain horrified at this decision and I'm not kidding. As always TS, you perfectly weave a single instance into the ever growing tapestry of proof that all liberals wish to see the constitution reduced to nothing but toilette paper. A false proposition to be sure, nonetheless, you do it quite well. This was a horrible, horrible decision that to me, represents more of the selling out of the alleged liberals more than anything else.

  3. Actually, I've never heard of a single Lib outside of Stevens who supports this. The first I heard about it in depth was on a segment on The Rachel Maddow. She absolutely railed against it, called it facist.

    I'm not sure why you blame Libs for this one, TS.

    1. Someone actually watches Rachel Maddow. Her ratings just.doubled.

      How cute.

  4. The town of New London never revived after the end of the whaling industry. The towns decision to seize private land to give to Pfeizer Pharmaceuticals to generate tax income can hardly be blamed on liberals (or conservatives).

    However, After Kelo, more than 40 state legislatures passed laws that banned or restricted the use of eminent domain for the purpose of economic rejuvenation, especially when it meant displacing homeowners. At least seven states amended their constitutions to ban the use of eminent domain for economic development, and some state courts explicitly rejected the Kelo ruling as precedent for interpreting those states’ own taking laws.

    The Kelo decision inspired ideological mass confusion, as when then-Democratic National Committee chairman Howard Dean declared in 2005 that the Kelo ruling had been all the fault of President George W. Bush. “The president and his right-wing Supreme Court think it is ‘okay’ to have the government take your house if they feel like putting a hotel where your house is,” Dean announced at a college rally.

  5. Firstly Mike, I may be mistaken but I can’t recall one instance on this forum where you challenged any argument on constitutional grounds. I find that to be generally true for most that carry a progressive flag. Interestingly Obama found himself in a quandary over the debt ceiling because the 14th amendment would have giving him clear justification yet… invoking any provision of the constitution makes every provision relevant so opted for government shutdown rather than use the document he is supposed to uphold. I can honestly say that the only real comments about the constitution that I hear from the left are ones that talk about its irrelevance or it being ‘such’ a living document that article V is unnecessary or that it needs a total rewrite to become ‘modern’

    Note that I give as much blame in this decision and others on the generally conservative position of judicial deference as I do to the activism that occurs in the court. The 5-4 decision, with the possible exception of Kennedy falls neatly in the direction that I would expect of the remaining four. I would have to add however that regardless the history going back to the feud between Jefferson and Marshall or the discussions of the subject after the Civil War, we can owe much of our propensity to judicial deference and precedence related activism that accompanies it to FDR and Holmes. We can all agree that judges today are not picked because they advocate for constitutional positions.

    As far as why I blame progressives for this decision. The same type of constitution twisting thought processes went into redefining the ‘Taking Clause’ from ‘public use’ to ‘public benefit’ is no different than took the Commerce Clause from one that insured that states played fair with each other to one that dictates just about every aspect of commerce both inter and intra state… or the ‘welfare clause’ or ‘necessary and proper’ or just about any other provision of the constitution that could be redefined from ‘enumerated powers’ to seemingly unlimited… Yes, I blame progressives (and the judges they appoint) for that.

    Even Rachel Madlow has moments of clarity …. Hell, I have even agreed with her a couple of times. Liberals do get nervous too when someone puts up a direct threat to THEIR home…

    The state laws passed after this hideous decision was federalism at its best. Unfortunately these actions weren’t states adopting or rejecting the ideas or actions of another state in relation to their rights as states under the 14th amendment, they were fighting yet more federal overreach and yet another hideous ‘takings’ decision of the supreme court lest we forget its previous forays into imminent domain that levelled poor communities in the name of urban renewal just to turn them into federally mandated ghettos…

    Mick, you know as well as I do that Dean’s comments were pure deflection. Taking stuff from people who have worked hard to get is the domain, quite simply, of the left… and rent seekers who have enough money to buy their favourite politician (which is what occurred I this case)… who in turn stacks the court for future progress.

    1. I do think that this was a terrible decision by the court. Not being a lawyer or a constitutional scholar I am not qualified personally to judge the constitutionality, that is why we have a supreme court. And, yes, the supreme court is deeply flawed as it is a political entity, regardless of how much they deny it. And it will always be so since the justices are appointed based on the political leanings of the administration in power. Having said that, it is likely that no supreme court ruling will ever be based solely on the Constitution. That is my opinion.

    2. It is a flawed view to assume that I don't have respect for the constitution just because I choose not to endlessly debate whether a particular view or law meets constitutionality. What would be the point? Conservatives see the world in a certain way, and lo and behold, their interpretation of the constitution matches that view. Amazing how that works.

      As for liberals, or at least speaking for myself, I have a genuine curiosity of the world around me. I want to understand why people do what they do and I also want to understand and perhaps solve what I deem to be social programs. The constitution is a rigid set of rules that doesn't help me understand anything, it merely tells me what I can and cannot do. So yeah, I'm not likely to take the cop out that X problem is irrelevant because the constitution forbids me from doing anything to try and solve it. I'm also not likely to claim that every social ill is because the constitution was or wasn't followed.

    3. This in my opinion is the fatal defect in thinking we have entered into. We ‘expect’ and allow for judges to be political rather than unbiased analysts of a potential new law or conduct against established law. We tolerate that a president will put up a clearly partisan candidate to ‘balance or tip the balance of bias’ and we tolerate that the review process works to destroy their character whether eventually confirmed or not. We don’t insist that our judges adhere to the constitution anymore, apparently, than we do our president. One can argue that established precedent is the law but if it could not pass constitutional muster in the first place, the precedent itself is a violation of law.

      I don’t think that the constitution is that particularly difficult to understand in the literal sense… and when you add supporting documents, it is clear that the ‘interpretation’ of the document over the past 100 years clearly advances ideology and not the need for clear solid law….it is only when you get a room full of career politicians, money, lobbyists and litigant lawyers does it become fuzzy logic.

      When judges attempt to set aside the policy decisions of our elected representatives, when they claim that their own constitutional judgments trump those of others, then they cannot rest such claims on mere political idealism couched in a loose constitutional rhetoric. A supreme court that does not operate inside the law become the defacto rule makers and when we condone… no encourage our ‘lawmakers’ to create law that dilutes the very law from which it should come, throw in equal measures judicial deference and precedence… you no longer have the rule of law.

    4. So you roll with the same political ideology of the president… If you don’t have enough support for YOUR idea and are unable to get the law changed to suite YOU based on clearly defined requirements… and you are in the position to do so…. You just ignore the law. The constitution, in and of itself, prevents nothing… the inability to muster enough support for your idea does. The constitution is open ended to change; its only requirement is that the changes be acceptable to the preponderance of the population thus preventing huge changes in law that are populous driven. In the two hundred and 40 years of its existence no one has seen fit or even proposed to change the 2/3 requirement to pass an amendment. I get dismayed by people who bitch about loopholes in the law and in the same breath disregard the law when it suits them…. And unless you think due process is a joke…. The constitution IS the law.

      P.S. I didn’t say that you don’t defend ALL of your ideas on constitutional principle… I said that I don’t recall you ever defending ANY of your positions on constitutional principle. My assumption may be flawed but it is not without a reasonable amount of time, observation and discussion that it was formulated.

  6. The Scott.

    In Colorado we are in the process of building a horrible light rail system. Inefficient at best, certainly a boondoggle. All the local governments are behind the project as they look for revenue.

    Numerous pieces of property from commercial to residential have been confiscated by the local governments for development. New commercial buildings a favorite as it generates tax income. High density housing a second favorite.

    The owners were given what the appraiser from the city valued the property. In many cases, under valued and the property owners had to hire attorneys and pursue a legal remedy.

  7. Comment from Mick above quote And, yes, the supreme court is deeply flawed as it is a political entity, regardless of how much they deny it. Unquote.
    In Australia we have the same problem, Justices appointed by the Political Party in power at the time of the appointment. This, as with the US, gives us a Supreme judicial body tainted by political appointment. We can all see the problems and we have also seen the results of decisions arrived at by our respective courts which display Left or Right prejudice. My question to both TS and Louman in particular; what alternative can you suggest ? For myself, I have been trying to think of an alternative for years without success.
    Cheers from Aussie