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From: "A.Melon" <juicy@melontraffickers.com>

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The principle of using the takings clause to transfer private property to private parties has already been approved by the Supremes. This is but another variation. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=467&invol=229

Interesting that the author of that opinion was O'Connor, who authored the *dissent* from this week's opinion. Apparently, taking property from one private individual and giving it to another is fine with her if the one you're taking it from is a member of an (evil by definition) "oligopoly".

O'Connor's dissent in the recent case is full of hair-splitting about why this transfer isn't for public use while the other one was, but all of her arguments would have and should have applied to the earlier case as well.

There is a special place in Hell reserved for people like her who open the proverbial barn door and then proceed to complain when the whole herd stampedes through. The key word is "principles": O'Connor should find some and try applying them consistently.

In her defense, she *thinks* she's identified a legitimate distinction. She thinks there's a fundamental difference between taking property for the purpose of economic development and taking property to break up a landholder oligopoly on a small island. Unfortunately, she's wrong. She's a two-bit socialist in the realm of constitutional takings. She has no compunctions about taking from the rich and giving to the poor, or taking from someone to protect the "environment." But she starts whining when the court decides to take from the (relatively) poor and give to the rich. As for Berman... (quoting O'Connor's dissent from Kelo)

In Berman, we upheld takings within a blighted neighborhood of Washington, D. C. The neighborhood had so deteriorated that, for example, 64.3% of its dwellings were beyond repair. 348 U. S., at 30. It had become burdened with "overcrowding of dwellings," "lack of adequate streets and alleys," and "lack of light and air." Id., at 34. Congress had determined that the neighborhood had become "injurious to the public health, safety, morals, and welfare" and that it was necessary to "eliminat[e] all such injurious conditions by employing all means necessary and appropriate for the purpose," including eminent domain.

Those are good reasons for the government to do something, although I can't agree that taking the property to raze it and sell it to developers -- no matter what the reason -- qualifies as public use. To be constitutional, they'd have had to turn the area into a public park or a museum or something. A reasonable action under our current system of government and jurisprudence could have been for the D.C. city council (which can be overridden by Congress, but Congress generally leaves it alone) to enact a health and safety law requiring the property owners to fix things, and fining them and having the city fix things if the property owners did not comply. If fixing meant razing the buildings and putting up tents, so be it. But no level of government had the right to take titles from the land owners unless the land would then be put to public use. I don't philosophically support that solution because it violates private property rights. If someone wants to live in an unsafe or unhealthy environment with no light and no alleys, the government shouldn't have the power to intervene. But it's widely accepted in urban areas that the government has the power to intervene on the basis of gross neglect of public (e.g. tenant) health and safety, and that's a somewhat better and less intrusive way of fixing the situation in Berman without going so far as taking the property away from the landholders. The opening paragraph of Berman admits that the property, once taken, "may be" (i.e. will be) sold to private developers. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=348&invol=26 So, while O'Connor shouldn't be defending either decision, at least there was some basis for the government to do *something* in Berman. And at least, because O'Connor wasn't part of that decision, she can't be accused of violating her own principles in Kelo with respect to Berman.

Well, once the Supreme Court starts coming up with stuff like this, you know you've been Bush-whacked. J.A. Terranson wrote:

On Thu, 23 Jun 2005, Tyler Durden wrote:

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What this equates to is, whoever had more money than you can take away your home. Previously, it was just the occasional men-with-guns that could do this, but now they effectively have proxies everywhere.

It just makes formal (and official) what has existed for a long time. The guy with the most money can do whatever the fuck s/he wants to, with no regard to any rule of law or social responsibility, and there isn't anyone who wants to change that.

After all, if we really wanted to change it, it wouldn't be just four or five cpunks bitching on a now obsolete mailing list - it would be citizens with guns storming the halls of congresscritters.

At 10:19 PM 6/23/2005, you wrote:

On Fri, 24 Jun 2005, Jay Listo wrote:

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Well, once the Supreme Court starts coming up with stuff like this, you know you've been Bush-whacked.

Maybe you should take another look at who voted how. The Bushies dissented on this opinion. Go figure.

Not surprising at all. The Bush camp's court agenda is spearheaded by members of the Federalist Society which wants to roll back many of the SC's decisions of the early-mid 20th century (esp. the Social Security Act and the expansion of the Commerce Clause during FDR's reign). Steve

At 10:36 AM 6/24/2005, J.A. Terranson wrote:

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Not surprising at all. The Bush camp's court agenda is spearheaded by members of the Federalist Society which wants to roll back many of the SC's decisions of the early-mid 20th century (esp. the Social Security Act and the expansion of the Commerce Clause during FDR's reign).

You're on crack. They just expanded the Commerce Clause to it's logical limits with the California medical maryjane case. The Bushie agenda may seem traditional reactionary on the surface, but look carefully and you;ll see significant differences in modern neocon vs old family Nixon.

Shrub doesn't want Federalism, he wants full theocracy with a Federal bent.

Its true that he and many of is supporters are conservatives and not libertarians. Perhaps I'm misrepresenting the essence of the Federalist Society also. Its not clear that they adhere to a single strong ideology, but rather to a vague view of limited government and an 'originalist' interpretation of the Constitution.http://www.law.ucla.edu/volokh/fedsoc.htm But I can't think of a single case where the SC limited an important authority the government thought it had granted itself. It seems such rollbacks historically only occur on the heels of major protests, threat or actual civil war. So it will be interesting if Bush gets to appoint some of the judges he desires on the SC and if this indeed leads to an eventual rollback of Commerce Clause interpretation. For me an equal bone of contention is the very questionable passage of the 14th Amendment. Even worse than the lack of serious debate which surrounded the Patriot Act, the 14th was passed with Congress violating its own rules of majority and plurality. They simply refused to allow already seated members into the chambers for the vote. They also 'manipulated' the state voting results and neglected to send the result to the President, as Constitutionally required. When a case challenging the 14th was brought to the SC, it ruled that they had no authority to rule on Congresss' failure to follow the Constitutional processes. A total cop-out. But what did anyone expect with 500,000 Americans recently killed on the battle field to keep the Union together. When push comes to shove, the Constitution is only a piece of paper to those in power. Lenny Bruce was certainly right when he said.. "In the halls of justice, the only justice is in the halls." Steve