ZenPundit
Friday, June 24, 2005
 
THE MEDIOCRITIES IN BLACK ROBES

" Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

- Justice Sandra Day O'Conner, in dissent

If after thirty years of trying to tilt the Supreme Court of the United States to the right and toward a philosophy of judicial restraint the best outcome we get is this morally obtuse and defiantly Orwellian decision by the textual-phobic moderate Justices, it is time for the GOP to throw in the towel. We need a a different strategy. Some other views on Kelo:

Jeff at Caerdroia:

"On thinking more about this, there are two things I find even worse than the thought that our Constitution as written is meaningless: the Court just handed city officials everywhere the ultimate fundraising tool, because the opportunity for corruption inherent in city officials selling your property for campaign cash is unlimited; and we've tried in the West a system where the wealthy can simply expropriate land at need, reducing the non-wealthy to indentured tenants in fact if not in word - it's called feudalism, and it didn't work out too well, all things considered."

Todd Zywicki at the Volokh Conspiracy:

"New York Times Hypothesis:

Awhile back, around the time of Lawrence and Grutter in particular, the hypothesis was floated--mainly in jest, I assume--that the best predictor of Surpreme Court outcomes in many socially and politically controversial cases was the conventional wisdom of America's political and legal elite. And that this consensus could be captured in an operative variable as being the expressed position of the New York Times Editorial Board (perhaps the Washington Post Editorial Board as well).

The Court's ruling in Kelo got me thinking about this hypothesis again, and so I went back and looked at the New York Times Editorials in three recent cases that came to mind as perhaps the most obvious tests of the hypothesis--Kelo, Raich, and Granholm. Sure enough, traditional legal variables seem to do fairly poorly in predicting the results in those cases, as many have noted. The composition of the majorities and minorities are all over the place with little consistency."

But one variable does hit the mark three out of three times--in each case, the Supreme Court ruling met with the approval of the New York Times Editorial Page. Moreover, Kennedy--who has typically been characterized by critics as being the most susceptible to being swayed by elite opinion--voted with the Times, I mean the majority, in each of the three cases (by my calculation, he was the only one who did so). (Update: As the Comments point out, the liberals Souter, Ginsburg, and Breyer consistently were in the majority in these cases, it was the others that switched around.) "

Stephen Bainbridge at TCS:

"Unfortunately, the requirement to pay fair market value is a grossly inadequate safeguard on government power for two reasons. First, it fails to take into account the subjective valuations placed on the New London property by people whose families have lived on the land, in at least one case, for a 100 years. In other words, the government now will be able to seize land at a price considerably below the reservation price of the owners. Indeed, as Will Collier explained:

"... the price even a willing seller would be able to get from his property just took a huge hit. All a developer has to do now is make a lowball offer and threaten to involve a bought-and-paid-for politician to take the property away if the owner doesn't acquiesce."

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."

I think Todd made exactly the right point about elitism being the operative problem here. Kelo represents a growing tendency of the political, business and legal elite feeling entitled to impose a creeping oligarchy by inverting clear meanings of Constitutional clauses so that some - namely what Ayn Rand once called " the aristocracy of Pull" - shall be more equal than others.

Some of us can advertise our political opinions less than sixty days before an election and some of us cannot. Some of us can bribe and intimidate a village or town council composed of small-timers with bad toupees and unjustifiably large egos into looting the homes and businesses of their unconnected neighbors and some of us will lose our homes.

Oligarchy is a sign of civilizational decay.
 
Comments:
Mark,

Great post.

If after thirty years of trying to tilt the Supreme Court of the United States to the right and toward a philosophy of judicial restraint the best outcome we get is this morally obtuse and defiantly Orwellian decision by the textual-phobic moderate Justices, it is time for the GOP to throw in the towel.

The GOP is tring to take down ("weaken the independence of") and take over the judiciary.

Ideological insurgent struggle naturally takes decades. Why quit after only three?

and we've tried in the West a system where the wealthy can simply expropriate land at need, reducing the non-wealthy to indentured tenants in fact if not in word - it's called feudalism, and it didn't work out too well, all things considered.

Similar arch-libertarian criticisms are made of the real estate tax, and for that matter the old English tradition of considering "abandoned" land "abandoned." For more than a millennium, the Anglo-Saxon tradition has seen land as a source of wealth and viewed those unable or unwilling to monetize their land skeptically.

Unfortunately, the requirement to pay fair market value is a grossly inadequate safeguard on government power for two reasons

Nor is the pre-decision status quo. As part of a South Dakotan intra-GOP feud, a Republican Sioux-Falls fixer had the city seized and burned down the home of a Republican friend-of-Janklow. The reason? The fixer suddenly realized the fire department needed practice, and that the home just happened to fit the bill.

Was it illegal? Yup. Does the City of Sioux Falls owe hundreds of thousands in legal judgements? Of course. Did any of that put a meaningful "safeguard on government power" that the Court took away? Nope.

The case came down to states rights v. the right of the federal government to make social policy. The court decided right.

-Dan tdaxp
 
Oligarchy is a sign of civilizational decay.

This is something of an amusing objection, given that the Republican Party is the center of oligarchs' political power.

Next, you'll be telling us how dangerous wealth inequality is.
 
Hi Mithras

"This is something of an amusing objection, given that the Republican Party is the center of oligarchs' political power"

Soros, Ford, Carnegie,,Mellon, Rockefeller, Heinz, MacArthur, TIDES etc. etc.

Given the great dynastic family fortunes that back liberal and left-wing causes I'd say I'm on target. At a minimum, elitist preference for oligarchical outcomes is a bipartisan phenomenon

Hey Dan,

I'm not inclined to give up so much as it its important to realize that the strategy has its limits as a magic bullet.

Anglo-Saxon tradition going back to the era of enclosure of the commons does take that view but that thrust was not directed at land held under the Lockean understanding of property rights but at commons land or land regarded as terra incognita.

I had a brief, rare, altruistic moment of local government service in my life that dealt with making planning & zoning decisions. What I saw, even with well-intentioned & honest individuals running the process was a system ripe for gross abuse. The last thing these guys needed was a SCOTUS green light to go completely hog wild.
 
I had a brief, rare, altruistic moment of local government service in my life that dealt with making planning & zoning decisions. What I saw, even with well-intentioned & honest individuals running the process was a system ripe for gross abuse. The last thing these guys needed was a SCOTUS green light to go completely hog wild.

Agreed.

However, in the last few decades the Supreme Court has done far more harm to liberty than all the zoning boards in the nation. Given the choice between federal regulation of zoning boards, or local control, I'll go with local control.

-Dan tdaxp
 
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