Friday, November 04, 2005

The Democratic Process Can Always Beat an Elitist Court

In June the Supreme Court handed down one of the more surprising rulings in recent years, saying a municipality could use its power of eminent domain to take private property not for a public use but for what it construed as a mere "public purpose." In other words, the city could take your house and sell it to another private owner assuming he would put the property to a better use than you, generating tax revenue, for example. I arrived at a deposition in Lufkin that day and it was all the two dozen present were talking about. And none of the lawyers seemed to like the decision, neither those on the left nor on the right. And the son of one prominent local weatherman, formerly of Miami (a little internet discretion) pointed out the obvious:
If no one likes it, there's a simple solution.
Yes, there is. But would the Congress bother? Two weeks later I found myself in a hippie bookstore just north of San Francisco. The ladies behind the counter were apoplectic about the decision. "It's those darn Republicans. They'll take your house and tear it down to put in a shopping mall."

These ladies ran the store, so I knew they would be polite when I elbowed my way into the conversation. They explained that it was the conservatives.

After all, that Sandra Day O'Connor was the deciding vote.

We talked a good bit, and I told them what most Republicans had been saying. They explained how threatened they felt due to the way eminent domain had been used in their area already. And we agreed, an amendment just might do it. (Though an amendment is not required--for the legislature to pass a bill limiting its own power, no amendment is needed. But an amendment is necessary where the legislature seeks to enlarge its own power and limit that of states or citizens. To limit the abortion rights created by Roe v. Wade, for example, an amendment would generally be necessary.)

Today Trevor Bothwell at the Democracy Project has a great piece. Wonderful news, pithy analysis.

The House of Representatives passed the Private Property Rights Protection Act yesterday by a vote of 376 - 38. The bill [not an amendment] essentially repudiates the Supreme Court’s disastrous Kelo decision. It’s a great bill that received strong bipartisan support.

For all you teachers out there [Bothwell is a teacher], this is a perfect example of a lesson for the kiddies on how our system of checks and balances is supposed to work. The Supreme Court uses the Constitution for toilet paper; Congress says, "We'd rather you use Charmin."

When it comes to politics and the law, I like Jonathan Swift's approach. Sometimes you just can't beat a little SCATOLOGY.


Blogger e said...

hey steven...i have a question...i want to know your judicious thoughts (can i say that? of course i can)...about human trafficking...i would like to know where the you stand with the issue of child pornography that keeps getting hidden behind "rights" and the connection between the two...i would also like to know what you think about said issue in our community...houston

11:28 AM  
Blogger J Holden said...

i think that's really a stupid ruling that the SC put out

am i wrong? is it based on anything real?

but you're right, what a great example of our Democratic Process - keep the courts in line

12:31 PM  
Blogger Steven Wales said...

I am proud to be acquainted with the catalyst behind the Trafficking Victim's Protection Act of 2000 (Michael Horowitz of the Hudson Institute). There's a lot of story there, see "Freeing God's Children" by Allen D. Hertzke for more.

Anyway, as for human trafficking, I'd say I'm against it. Pretty much. (Just kidding--of course it's an unspeakable crime.) As to child pornography, I'm so against that I can't for the life of me understand how or why any court would call that protected speech under any standard. It's preposterous. Obviously a court reaching that conclusion has completely rejected any attempt to consider the original understanding of the First Amendment. In addition, this is another area where only an activist court could produce such horrible results. There is not a voting population in this country that would vote to protect any kind of child pornography. Not the people of San Francisco, Los Angeles, Las Vegas, New York, New Orleans.... If the public went to the polls on this child porn would never be legal. Not even "computer-generated child porn."

And I can't help but believe allowing the one creates a taste for the other--and that is dangerous for children.

As to Houston, I have little knowledge of the presence of either of these things here. Not that they aren't here--I just don't know much about it, never having worked in law enforcement or at the DA. I'm sure it's around, and it's absolutely evil.

Finally, having served as the best man in the sham wedding of what we later learned was a recidivist child molester, I can say two things with clarity. One--it feels really good when the bad guys get put away where they can't hurt anyone else; and Two--I can't claim not to smile when I hear how the rest of the prison population treats the pedophiles.

10:38 PM  
Blogger Steven Wales said...

J--as to that Supreme Court holding, yes, it's based on something real, if you consider a long string of takings cases precedential. But to my knowledge, this was a new twist.

Oliver Wendell Holmes once said "bad facts make bad law." What happened here was a case of bad facts--but an ideal set of facts for local governments. I don't know much about it, but my understanding was that the municipality in question seized property that was undervalued and full of poor people and the crime and drug problems that often beset such areas. After bulldozing the low-rent housing, they put in high-dollar condos or a shopping mall or something. This is the way many cities have been tackling urban blight. Seize the property, pay off the landlords (often not poor, and possibly not unhappy to be rid of the property) then sell the land to Big Land Man, who will bulldoze the crack houses and etc, burn the bubonic mice, plow it all under, and snap down something new and pristine, thus attracting the wealthy from the suburbs, and their money, and more sales taxes, more property taxes, etc. Of course, the poor Joads with all their worldly good lashed to a wheezing old pickup are in a real bind. Daddy may still have a job, but where's he gonna' put the family? How's he gonna' pay the rent their asking now? How far out of town will he have to go before he finds a place? And what if the hundreds of other Joads are already there?

For more thoughts like this (angry and "progressive" and full of zeal for the noble savages, I mean noble poor), consider "Nickle and Dimed" by Barbara Ehrenreich. But keep a tight grip on your GOP id card....

I honestly cannot understand this ruling. It was insane, no matter what side you are on. Even developers were unhappy, or some of them, because they knew that even their land could be seized if the government wasn't happy with it. And to take it, only to sell it to another private individual, that's nuts. The point of takings law is to allow the government to seize only what it needs for such things as roads, bridges, landfills, sanitation and water plants, levees, flood control zones, and the like. It's about building necessary infrastructure, not putting in another Wal-Mart and generating tax revenues.

Besides, that's what speed traps are for.

10:58 PM  
Blogger e said...

thanks for your thoughts...i'm writing a research paper...would you mind if i quote there any way for me to get intouch with micheal horowitz? anything would help...thanks again!

4:03 PM  
Blogger Steven Wales said...

You may quote me of course. I'm not presently in touch with Mr. Horowitz. However, you might be able to find him at the Hudson Institute's website. That's how I found him.

The Houston Journal of International Law published a paper on human trafficking in its Spring, 2002 edition. They tell me it's available online now. (But I haven't checked.) Anyway, I helped edit the paper; it might be some help to you.

What's the paper on? Trafficking, porn, and the first amendment--sounds like a pretty broad topic. What are you studying?

11:04 PM  
Blogger e said...

thanks for the info...basically...the paper argues that free speech isn't free if it costs somebody...anybody...using the connection between porn and human trafficking and consumer society to prove my point

10:51 AM  

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