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Thursday, June 30, 2005

What the Court Hath Wrought

What Hath the Court Wrought?

If there has never before been a series of rulings that scream for the appointment of constructionists to the court, there has been now.

I’ll give a quick summary, with a link, and the comments of a constructionist justice and a liberal justice to show how constructionists use the Constitution to determine if a law is constitutional, while liberals use, um, anything else.

First, it is now legal for the government to take property from one private citizen and give it to another private citizen. We’re not talking abut highways and military bases here – we are talking taking Joe’s Garage away from Joe and giving it to Red Lobster. I’m not a Locke or Jefferson expert, but I’m guessing that neither of them envisioned this.


“There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.”

Apparently, condemnation is not governed by any rules, either, than by the will of those in power.

“Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.”

Really? Proposition one sounds exactly like the situation at hand.

“we concluded that the State's purpose of eliminating the "social and economic evils of a land oligopoly" qualified as a valid public use.”

Get that? If you have too much land, according to the G, they can take it and redistribute it to whomever they want. This is actually a summary of a 1984 case, Hawaii v Midkiff. So, if they can take from the big guy and give to the little guy, why not the opposite? Apparently, according to our 6 most liberal justices, who are being honest, why not indeed? If they were going to follow previous case law, this had to be the result.

One of my favorite quotes (These above, and this, are all from Justice J.P. “I dig foreign law ay more than these stupid states’ laws” Stevens), and likely a favorite of Eric and Robert:

“Promoting economic development is a traditional and long accepted function of government.”

Riiiight. Only if traditional and long accepted begins with FDR.

Constructionist (and losing) retort:

“ Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
"An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).
Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.”

From Justice S.D. “ceremonial deism” O’Connor, who, oddly enough, voted with the majority in Hawaii v Midkiff. Note how she uses the exact words from the Constitution that are ignored by the liberal block. O’Connor is not a constructionist, but she has moments of sanity.

“Two months later, New London's city council gave initial approval for the New London Development Corporation (NLDC) to prepare the development plan at issue here. The NLDC is a private, nonprofit corporation whose mission is to assist the city council in economic development planning. It is not elected by popular vote, and its directors and employees are privately appointed.”


“The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that "private property [shall not] be taken for public use, without just compensation." When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, "that no word was unnecessarily used, or needlessly added." Wright v. United States In keeping with that presumption, we have read the Fifth Amendment's language to impose two distinct conditions on the exercise of eminent domain: "the taking must be for a 'public use' and 'just compensation' must be paid to the owner." Brown v. Legal Foundation of Wash.,”

So there you have it. One block of the court seeks to increase the power of the government using expansions of previous case law, the other tends to restrict the power of the government using the (horrors!) Constitution.

A bit from Justice “Smarter than Harry Reid” Thomas:

“The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause, ante, at 9-10 (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."”

Doesn’t get any clearer, does it?

Next up, we have the pot-smoking cancer victims, in Gonzales v Raich.
Here, the court said that the feds can keep people from smoking pot, specifically those who are using it medicinally for pain relief. Personally, I think that if you smoke pot for any other reason that you are a moron, and that there are probably lots of other ways for effective pain relief for these people. However, that’s not the question. The question is, what gives the feds the right to make it illegal, especially when the states in question have made it legal?

The Commerce clause of the constitution, which states that Congress may “regulate Commerce with foreign Nations, and among the several States”.


However, this was also a no-brainer, since in 1942 (Wickard v Filburn) the court ruled that the G can fine a farmer for growing wheat to feed to his own cows, since he therefore did not buy from other farmers, thus “affecting interstate commerce”. Furthermore in 1968, the court ruled that “labor conditions in schools and hospitals can affect commerce.” So, not only has the court determined that the feds can regulate actual interstate commerce, it can regulate things that have the massive impact on interstate commerce as your own cattle’s feed, and it an even regulate things that “may” affect commerce.

If you want to see how the liberal Justices frame their arguments in these cases, you merely need to read Justice Stevie “In bad, Out good” Breyer’s dissent in the 1995 US v Lopex case, where he says, “Congress could have obviously found that guns and learning are mutually exclusive…[and therefore] and education problem...[therefore] Congress could also have found…that gun-related violence in and around schools is a commercial problem.” Clearly, the liberal block thinks policy first, Constitution second. Proof from the case:

“"Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.”

Ah, it’s rational, and makes sense according to Webster’s, so it’s good to go.
That seems pretty logical to me. Wickard v Filburn is the monster quoted in the majority decision here, ad infinitum. That’s why I said this case was a no-brainer. Ginsberg, Souter, Breyer, and Stevens will always vote for policy (liberal policy) when it gives the feds more power, and especially if it gives the court more power to decide.

Scalia actually concurs in the judgment, but based his opinion upon the “necessary and proper clause” of the constitution. I don’t think he ever mentions Wickard. He concludes, “I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market "could be undercut" if those activities were excepted from its general scheme of regulation.”

Honestly, I’m not sure how that’s different. I’d best keep my tomato garden secret.

Stevens notes the truth, but mocks it, by noting Thomas’s dissent “That is, the dissenters' rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the " 'outer limits' " of Congress' Commerce Clause authority”

He was referring to:
“ Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.

Respondents' local cultivation and consumption of marijuana is not "Commerce ... among the several States." U. S. Const., Art. I, §8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents' conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents' conduct.”

Exactly. That’s what the Constitution says. I think those Framer guys were smart enough to say what they mean.

Got it? Liberals support a bigger governmental authority, part II, complete.

Finally, the Ten Commandments. This was as predictable as the past two. Simply looking at the opinions in recent church-state decisions by the liberal block (of which Kennedy had been in…until this case, oddly enough) would have revealed the results. In 1992’s Lee v Weisman, prayers at graduations were struck down because of “psychological coercion”. In 2000, the court prohibited prayers by students at football games in Texas because non-believers would feel like “outsiders”.

Thus, we have a case law record that has taken the clause “Congress shall make no law respecting the establishment of religion” and made it into the “right to not feel uncomfortable when others are expressing their religious beliefs.”

Well, here are the links – KY (take ‘em down) and TX (Keep ‘em up). The difference? The prediction of the court in 1991’s Harris v Zion – “the personal view of judges”. Thomas points out quite clearly that no case law is required to interpret the establishment clause. The libs do no such thing, requiring oodles of cases and a supernatural ability to determine the “intent” of those who post the commandments. Rehnquist’s opinion, as well as the rest of those in favor of the Ten in both cases (How S.D. “ceremonial deism” O’Connor voted against them both I’ll never figure. See her opinion in the Newdow case from last year) point out the absolute incomprehensibility of the case law, which makes no sense.

Lastly, claiming that the government must be neutral to religion and non-religion by making it dodge any reference to deity is not neutrality – it is endorsing non-religion. If the default answer is “no”, then no favors one side.

What’s my point?

The court continues to eliminate the rights of the people in favor of the government – especially the federal government. Stevens, Souter, Ginsburg, Kennedy and Breyer, joined at times by O’Connor, are stomping our rights – those with which we were “endowed by our Creator”, according to our “neutral” Declaration of Independence - into dust.

What are you doing about it?


  • Some days I honestly think that we are going to hell in a handbasket...and then others (well, most days) I think that we are the greatest country on earth.

    I guess that is what it means to live in America.

    As I have blogged, the property rights ruling really scares me.

    By Blogger John B., at 7/01/2005 09:28:00 AM  

  • Well-written and well-said. I could not agree more...

    By Blogger Pelty, at 7/01/2005 10:17:00 AM  

  • Hi Hammer,

    Are you saying it is OK for the government to take money from one citizen and give it to another (in another post), but it is NOT OK for the government to take property from one citizen and give it to another? Isn't money property?

    By Blogger David M. Smith, at 7/01/2005 11:13:00 AM  

  • This comment has been removed by a blog administrator.

    By Blogger A.T., at 7/01/2005 04:47:00 PM  

  • David,
    Allen said it better than I could. Also, don't confuse my personal political stances with my stances based upon faith. When I held that the manner of wealth redistribution that we have is not a "Christian" issue, it didn't mean that I approved!

    John, I thought it was te scariest as well. Now the liberals are truly exposed. They are not out for the 'little guy'. They are out for an increase in governmental power. Previously they have masked it as looking out for the little guy by only slamming the "rich" and corporations with these rulings. The cat's out of the bag, now.

    By Blogger Hammertime, at 7/02/2005 12:34:00 AM  

  • Hi Hammer and Allen,

    Arguing that we have always done something a certain is not a argument for the morality of what we are doing. Throwing money into a “big pot” as Hammer rationalized in a previous post, does not make it any more moral than using imminent domain logic to condemn a piece of land in order to redevelop it. Imminent domain logic at least pays the land owner a market rate. Redistribution of taxes provides zilch to the taxpayer being robbed.

    According to your logic, imminent domain would be moral if we could just get it into a great big pot. :-)

    By Blogger David M. Smith, at 7/02/2005 12:07:00 PM  

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