With that premise in mind, I'm going to take a shot at some low-key legal punditry, and break down some of the big, recent cases. I was a little bit inspired by the ongoing discussion at Slate, which features some excellent constitutional scholars and goes into great, provocative detail. I highly recommend it.
The Ten Commandments Cases. One ruling holds that Texas can display a mock-up of the Ten Commandments in outdoor public space because it's in a historical context; the other holds that a Kentucky courthouse can't display the Ten Commandments on a stand-alone basis.
Cases about such displays are the backwater of First Amendment law, right up there with what kind of striptease is expressive and what kind of striptease appeals to prurient interests. The reason is, they're incredibly fact specific. I'm a hardcore atheist: if I saw the Ten Commandments posted next to an excerpt of the Justinian Code, the Bill of Rights, and the Magna Carta, I wouldn't give a shit. If a massive stone tablet were posted behind a judge while she made a death penalty ruling, I'd be appalled. It's context, bitches. Government can't conscript you into being a vehicle for a religious belief (which is why I think "under God" should be found unconstitutional) but the First Amendment doesn't protect you from feeling squeamish (which is why a creche or a menorah in the town square doesn't bother me).
One of the aforementioned Slate postings quotes from the blog of Wisconsin law professor Ann Althouse, which pretty much summed up my feelings:
These are inconsequential displays, which is why they'll be approved if they are approved and why it won't make much difference if they are taken down either. ... Still, they are too much for the extreme secularists and just the beginning of what extremists on the other side would like to see. The Court needs to draw a good line that fends off both extremes.They split the difference enough for me to sleep at night.
Grokster. I haven't read this opinion, but from news reports, my understanding is that this ruling doesn't ban filesharing, it just leaves it up to juries to determine whether a given filesharing program is set up in a fashion that invites copyright infringement. For example, if you market your filesharing program by saying, "Why pay $10 for an album on iTunes when we'll give it to you for free?", you're probably encouraging copyright infringement. Or at least it would be up to a jury to decide if you are.
As stated, I haven't read the opinion so I can't say for sure. From my understanding, the worst that it does is foreclose blatant illegality on the internet.
The Connecticut Takings Clause case. The most interesting case by far. The Takings Clause is as interesting as public religious display cases are lame.
Essentially, the Fifth Amendment's Takings Clause says that government can take private property so long as it pays "just compensation" and the property is taken for public use. This issue is a powderkeg for the extreme right. For the free market types, it's a much bigger deal than a lame Ten Commandments display. It is linked to a theory that's been labeled "the Constitution in exile." Right-wing lawyers believe that an absolute right to private property should be paramount, thus eviscerating environmental law, land-use law, and, essentially, any kind of zoning. They believe that the Constitution has been "exiled" since the New Deal, and conservative University of Chicago professor Richard Epstein believes that a liberal interpretation of the Takings Clause is the bugaboo behind that exile.
The facts of the recent Supreme Court ruling are sympathetic, and unless you understand the scope of what the right wants to do, you're going to be inclined to think the Supreme Court gave a greenlight to municipal corruption and big business plutocrats. A city in Connecticut condemned large tracts of a thriving residential neighborhood, tossing out the residents for a massive property handover to private corporations. This sucks. I get pissed about fancy restaurants taking over my street, and I'd be furious if the Lower East Side were razed to make way for a few Wal Marts. The Supreme Court essentially ruled that a city validly exercises power under the Takings Clause when it condemns a viable neighborhood to make way for corporate interests.
Although the specific facts of this ruling make the outcome hard to swallow, the alternative was worse. In essence, if the Court came out the other way, the implication would be that environmental laws and historical preservation efforts constituted a taking of private property and should be nullified. The idea is this: private property would be made sancrosanct over almost all other governmental interests, and a governmental entity couldn't take property or limit its development without an extremely compelling justification. If the government can't bulldoze a house to make way for Pfizer offices, they also couldn't prevent someone from bulldozing a protected wetland to build luxury condos.
What makes the Takings Clause so tricky is that the Supreme Court has devised a series of balancing tests and bright-line tests that leave these issues somewhat open-ended. The facts made this a hard case, but a lot of the left-wingers who were furious with the ruling apparently didn't understand that it was a small piece of a much larger jurisprudential struggle.
Aren't you sorry you didn't go to law school?
12 comments:
I thought that this was pretty amusing. It's doubtful that this will be allowed to actually happen but I don't think that was the purpose in the first place. It was a publilcity stunt - and it's working. They've been getting a lot of attention in the blogosphere and conservative press - especially since Instapundit linked to it. Good for them.
Free Star Media has come up with an interesting way to protest the recent Supreme Court Decision regarding eminent domain. Here's an excerpt from their press release:
Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.
Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.
On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.
Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.
The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Caf" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."...
random rants....
I’m pretty sure that I don’t agree with this ruling. The justification for essentially bulldozing houses in Connecticut is that the new structures will provide an increase in taxes and jobs. These are good things; however it comes at the expense of throwing people out of their houses and giving them “just compensation” for their house. This “just compensation”, I believe, would be based on the tax roll valuation which could be $30,000 below fair market value of the houses (well, that’s the difference between the tax roll valuation and the market price for my house anyway).
By using eminent domain as the “reasoning” behind the ruling it makes "increasing the tax base" qualify as "public use" which is a huge load of bunk. As it stands now, my city could tell me tomorrow that I have to move because Crap-mart wants to build a shopping center on my land. And there's not a damn thing I could do about it. I feel like there is no such thing as land ownership in this country anymore - essentially all we do is pay rent to our landlord municipalities in the form of real-estate tax.
Dude, so if your land was taken under eminent domain, you'd complain that they stiffed you on your fair value? Does this mean you'll be contacting local authorities and asking them to raise your property taxes. I mean, fair is fair?
Please don't interpret me pouncing on this opening in your rant as an endorsement of land grabs for the politically well-connected. Because I don't. However, I can't get too exercised about the ruling, for precisely the big-picture reasons my co-blogger outlined above.
Market value vs. tax value is always lower. There are other factors that are included in what someone is willing to pay vs. what the wood, nails, plaster (or drywall), etc are worth. Including but not limited to the neighborhood the house is located in.
My biggest issue here is that an economic gain can be used by the government to seize property under the umbrella of "public use". Because who cares about neighborhoods if we can make a little money.
I know that my opinion on this doesn't matter...
“The consequences of today’s decision are not difficult to predict, and promise to be harmful,” Thomas wrote. “So-called ’urban renewal’ programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted.”
Now you can tear a building down, but you can't erase a memory/ These houses may look all run down, but they have a value you can't see.
Look to Living Color. Although I hear justice Scalia's favorite song by them is "Glamor Boys"
Yeah, I don't necessarily disagree with what you're saying. I think this was a really tough case. The other thing I didn't get into in my post (because I didn't think it would be that interesting to anyone but me) is that this ruling is consistent with a previous case that held eminent domain can be used to condemn blighted neighborhoods to make way for urban renewal projects. What I think breaks ground here isn't that people's homes can be taken in order to allow for commercial development, it's that a relatively thriving neighborhood can be condemned for the purpose of exercising eminent domain.
But if what the city were doing in Kilo were deemed unconstitutional, think about the implications on the flip side. Maybe the city couldn't take your home, but they also couldn't zone WalMart (or Union Carbide) out of building two blocks away from you. The elected officials ultimately are responsible for making the call as to what's effective urban planning (or environmental and land use policy) and not the courts.
The more that this whole shitty thing is hashed out the more I don't like either option... Though I really like the idea of a hotel on Souter's land. I can hear it already "Souter Gate".
I don't mean this in a know-it-all way, but it really does help illustrate how hard it is for courts to intepret law. The judicial nomination fights are frustrating to me because both sides act like the answers to their pet issues are obvious, and there's no legal or policy gray area.
You know this all started because i wanted to say "blogosphere".
I guess we can only hope that those CT politicians got their pockets nicely lined, or they may have to work at the New London Gap.
If only there were some way of holding elected officials accountable ...
(yes, I'm totally comment-whoring it up to get the total up to double digits)
Let's see if we can break 100.
that would assume that americans would actually vote... oops, i've said too much.
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