Mickey Kaus on the type of Supreme Court nominee Bush should/should not pick:
An honorable, undiluted conservative with strong doubts about Roe but no Lochneresque private-property enthusiasms would seem to be what is called for. …
On the contrary, after Kelo (the “takings” case) a nominee with strong “private property enthusiasms” would seem to be exactly what is called for.
“On the contrary, after Kelo (the “takings” case) a nominee with strong “private property enthusiasms” would seem to be exactly what is called for.”
This is precisely why Kelo was un-radical and most decidedely in 20th century jurisprudence. Because the other choice is lochner.
Nah, the other choice is the one the four dissenters took, which is a far cry from the Lochner Monstress.
actus,
This is precisely why Kelo was un-radical and most decidedely in 20th century jurisprudence. Because the other choice is lochner.
That’s right: if Pfizer gets to raze your house and put an industrial park on top of the lot, it’s because the only alternative involves ruling unconstitutional all minimum-wage and maximum-hour laws. Sorry about that.
Really, actus, what the hell are you talking about? The trouble with Lochner and progeny was always that they hadn’t any serious textual support in the Constitution. The dissenters in Kelo, by contrast, have lots, assuming incorporation.
“Nah, the other choice is the one the four dissenters took, which is a far cry from the Lochner Monstress.”
But its in that direction. Its in the direction of eroding the ability of legislatures to determine public uses.
“Really, actus, what the hell are you talking about? The trouble with Lochner and progeny was always that they hadn’t any serious textual support in the Constitution. ”
Well the trouble really was that it was enacting a private property view of due process that loads of the anti-kelo commentary has been hailing.
Really, actus, what the hell are you talking about?
Well, Michelle it appears that you finally lost patience trying to communicate with actus. The only thing I can say is what took you so long!
I just heard a debate on C-SPAN on the Kelo decision. James Sensenbrenner and John Conyers have introduced a sense of Congress resolution deploring the Kelo decision. When you get Sensenbrenner and Conyers on the same side of an issue you know you hit a nerve. In addition, a bill has been introduced in the House of Representatives to remove all Federal funding from any municipality that uses its eminent domain powers to take private property from an individual for the purpose of increasing its tax revenue. I
actus,
Well the trouble really was that [Lochner] was enacting a private property view of due process that loads of the anti-kelo commentary has been hailing.
Oddly enough, I’d always thought the problem with Lochner was that “substantive due process” is a plain contradiction in terms. To my innocent mind, “due process” means a “process” that is “due” — i.e., that a law has been enacted and enforced in accordance with the existing federal and state Constitutional framework. The idea that a properly enacted law that doesn’t violate any other clause of the Constitution could be struck down as failing to meet the “due process” requirement when it’s made its way quite regularly through the whole legislative process seems absurd to me. And the fact that Dred Scott and Lochner were the first two fruits of this dubious idea — I believe that it was Taney in Dred Scott who more or less introduced the idea, by writing that taking a man’s “property” away from him just because he’d crossed a state line “could scarcely be dignified with the name of ‘due process of law'” — ought to have given liberals pause about using this tool. But it’s just like Kelo: they do not want to lose any tool, no matter how badly it might be misused. And they specially favor open-ended grants of power like this one.
Richard,
Hey, I do try.
Yesterday we had an almost unprecedented event in the Op-Ed pages of the SF Chronicle: Molly Ivins and Debra J. Saunders (the Chron’s conservative Op-Ed regular) agreeing on something. Kelo, of course.
Though Ivins couldn’t bring herself to mention the lineup of judges, except to mention that O’Connor wrote the principal dissent. I really think one major reason the liberal reaction to this decision is so muted is that for a lot of people, being on the same side of anything as Rehnquist, Scalia, and Thomas is just deeply embarrassing.
O’Connor just announced her resignation, of course. Long, hot summer, I think.
We’ve got a case of ’eminent domain’ abuse right here in my home town. The local city government is trying to take properties from several homeowners and part of a property from a business (which will cause that business to shut down), and then give these properties to a developer so he can develop a private marina. Supposedly this private marina is going to revitalize the city. They are claiming that this general situation of a development that indirectly will encourage growth for the city is sufficient ‘public use’ for these to confiscate these properties.
I find this whole land-grab thing obscene, and in direct contradiction of our rights and protections from the U.S. government. Remember, the bill of rights is a list of rights of individual citizens, in order to protect us from government abuse.
And boy, is this abuse.
It’s a slippery slope, and it’s getting steeper all the time.
“And boy, is this abuse”
Claire, I feel for these families and business owners and agree that it does infringe on individual’s rights.. and more importantly their lives. Nothing like uprooting yourself and your family for already wealthy developers to come in and take over. And Claire, those who disagree with you should experience first hand the loss of their own house for a shopping mall; watch how fast opinions will change.
You gotta love Actus reasoning. That’s why he presides over show trials in Havana.
“I
actus,
Not the problem I have with it. The problem I have is that, basically, “[T]he 14th Amendment did not enact Herbert Spencer’s ‘Social Statics.'”
In other words, you’re perfectly happy for the 14th Amendment to “enact” anything you might happen to want, just not that, which you don’t happen to want.
(This is screwy, anyway, because, as I said, “substantive due process” predates the 14th Amendment.)
The answer to Dred Scott is to keep slavers off the courts. I think we can count on Republicans to do this.
Yup.
“In other words, you’re perfectly happy for the 14th Amendment to “enact” anything you might happen to want, just not that, which you don’t happen to want.”
I’m perfectly happy with substantive due process expanding progress and freedom, not plutocracy, money power and wage slavery.
“(This is screwy, anyway, because, as I said, “substantive due process” predates the 14th Amendment.)”
Perhaps. But then it was only binding the feds.
actus,
I’m perfectly happy with substantive due process expanding progress and freedom, not plutocracy, money power and wage slavery.
In other words, you want judges to be able to strike down any legislation at all, though it has been passed in the manner dictated by the system of laws in place and conflicts with no statute or Constitutional provision. On the other hand, you do not want them to use this huge but essentially formless power in ways you disapprove of. The only logical solution is for you either to hand-pick all the judges, or else to have veto power over their decisions. Anything else is bound to result in something non-actus-approved slipping through.
“In other words, you want judges to be able to strike down any legislation at all”
Not really. I mean, not everything is such a great threat to freedom as to require judicial overturning. I’m also just fine with being very cautious about just what is a protected freedom.
actus,
I don’t really see how that differs substantively from what I wrote. What you say is essentially that you would rank some freedoms more highly than others, and have no problem with a blunderbuss (“substantive due process”) being used against laws impinging on the freedoms you care about, as long as it is not by any chance used to protect freedoms you don’t much care about. In other words, you’d impose the Law of Actus, complete with full enforcement powers. I suppose it’s good to know that you can’t actually do that.
“What you say is essentially that you would rank some freedoms more highly than other”
but we do right? I mean, the freedom to have commercial speech is different than other speeches. the freedom to distribute porn is limited to adults. the freedom to be free from religious establishment allows vouchers to fund religious schools — i think. and so on and on.
some restrictions on freedoms are quite compelling, such as the prevention of true threats, or incitement type speech.
Just because I believe substantive due process should be protecting freedom doesn’t mean anything can go. I don’t think we have substantive due process rights to smoke weed, or to inject any drug into ourselves. Perhaps we have a right to die, but I haven’t thougth that one through yet.
“In other words, you’d impose the Law of Actus, complete with full enforcement powers.”
Look, I’m not the only one out there that thinks that freedom is a good thing. We did have that whole enlightenment thing.
Then again, I didn’t really say what I would impose. I said what I had or didn’t have a problem with being imposed. I think those are very different. For one, I don’t really have to work out just why, since I don’t have to justify the imposition — I’m not doing it. Its just what *I* have or don’t have a problem with.
The problem with the Actuses of the world read five senile old fools on the Supreme Court can be read “what I’d impose.” We live in a democracy not an autocracy and certainly not a Leftist oligraphy. Our imperial judiciary is a joke because it ignores the Constitution to continually impose its will on the citizens of this country. I hope Bush will nominate a strict constitutionalist like Scalia and not another Leftist like Hinsberg or O’Connor. If he does this nation is finished. We will be not a nation of laws but of judges. The chains of serfdom will follow soon thereafter.