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An editorial in today Washington Post begins thus:
IT’S HARD TO TAKE satisfaction in the Supreme Court’s decision yesterday in the case of Kelo v. City of New London — the result of which is quite unjust. Yet the court’s decision was correct.
Let’s see whether I understand. The WaPo says that the result of the court’s decision is that injustice will be done, but that the decision itself was correct.
Got that? The courts, which are charged with upholding justice, are now endorsed by the Post to render injustice provided that their decision is “correct,” whatever that means. The Post goes on to say,
The trouble is that there is no good way to distinguish New London’s use of eminent domain from assertions of the power that local governments depend on all the time for worthy projects. Railroads, stadiums, inner-city redevelopment plans and land reform efforts all have involved taking land from one owner for the apparently private use of another. …
However unfortunate New London’s plans may prove, stopping the city based on a standardless judicial inquiry into how “public” its purpose really is would be far worse.
So the Post falls into the Socratic fallacy of claiming that because we cannot define exactly what a term means there is no point in talking about it at all. Hence, power, not reason, rules, and government has the power, so government wins.
It’s one thing to say that this sort of thing has been going on a long time. It has - here in Nashville the city took land away from downtown businesses to give to Houston Oilers owner Bud Adams under the specious proposition that having a pro football team in the city would increases the standard of living of all. (It hasn’t, of course.) But, as Glenn Reynolds observes,
I think that existing law has moved, by gradual increments, to a point where it’s out of step with the Constitution and with public sentiment about what’s just.
Precisely. In fact, eminent domain has been misused by governments for a long time. Maybe now we’ll wake up and realize it and do something about it.
Comments policy
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June 24th, 2005 at 9:21 am
TO: Donald Sensing
RE: They’ve All Got the Bug
Glenn Reynolds is reporting that the NYT is doing the same schtick.
They all want us to live on Geide Prime.
And, if we don’t impeach these cretins, we’ll eventually end up there.
Regards,
Chuck(le)
June 24th, 2005 at 10:15 am
It takes a certain amount of hubris to state that a 5-4 decision was inevitable or that any other outcome was impossible. Read the dissents.
June 24th, 2005 at 11:13 am
TO: PD Shaw
RE: It’s Not Hubris…
“It takes a certain amount of hubris to state that a 5-4 decision was inevitable or that any other outcome was impossible.” — PD Shaw
…it’s PSYOPS.
WaPo and NYT are trying to squelch dissenting opinions in the public place by saying it was ‘right’, ‘just’ or ‘inevitable’.
The why of their position is subject to discussion.
Regards,
Chuck(le)
June 24th, 2005 at 12:04 pm
You, a cleric, say, “The courts, which are charged with upholding justice.” My Constitutional Law professor said, “If you want a decision on law, look to the courts. If you want Justice, look to Heaven.”
June 24th, 2005 at 12:39 pm
I’m afraid Mr. Heddleson has it right. The Courts are not there to serve justice; they exist to uphold existing law.
This would be a really good time to check on your congressperson’s address and start sending letters. Make it a “do-or-die” issue, if you like. But a solution to this serious problem lies in changing the law, not in changing how the law is interpreted.
June 24th, 2005 at 12:55 pm
TO: John Burgess
RE: Changes
“But a solution to this serious problem lies in changing the law, not in changing how the law is interpreted.” — John Burgess
I disagree. The problem will not be changed by just changing the law. All the activist courts will do is change how they interpret it.
What is needed is changing (1) the law, (2) the judges and (3) the legislators.
The first two hinge upon the third…and 2006 is a good time to effect said change. But NOW is the time to start working on it with diligence.
Regards,
Chuck(le)
June 24th, 2005 at 1:52 pm
“Railroads, stadiums, inner-city redevelopment plans and land reform efforts all have involved taking land from one owner for the apparently private use of another”…is the WaPo really unable to distinguish between a railroad and a stadium? A railroad, like a power transmission line, requires a long strip of connected land in order to be able to function at all. There is a lot more flexibility in how a stadium is located.
Also, railroads are essential infrastructure in a way that stadiums are not.
June 24th, 2005 at 4:24 pm
The S. Ct. decision indicates that somewhere along the line stadiums were classified as “common carriers.” No citation is given, but methinks that the erosion of the term “common carrier” might be more problematic than the erosion of the term “public use” Until today that is.
Otherwise we have three exceptional situations, which is hardly sufficient to throw out the baby with the bath water.
First, we have a single land reform case in which extraordinary steps were taken to reform monorchal land system of the former Kingdom of Hawaii. Unusual circumstance.
Second, we have the blight cases, which also involved the state’s police powers to tear down houses that posed threats to human health and safety (and send the bill to the owner). These are not pure takings cases, but also involve the State’s police power.
Third, we have the common carrier cases. Historically, common carriers were quasi-public agencies operating under government charter. This line of cases developed prior to the emergence of private corporations. Instead, corporations like the Massachusetts Bay Company were public corporations, doing both private, but mostly public duties. This line of cases should have shrank as our economy changed.
Sigh.