Litigating for Liberty

The Institute for Justice's Chip Mellor on campaign-finance reform, eminent-domain abuse, and licensing laws gone wild

Nick Gillespie from the March 2008 issue

(Page 5 of 8)

We fought against that with a lawsuit and the media. The Giuliani administration was actually supportive of our efforts, and we got the arbitrary procedures ruled unconstitutional. The vans are allowed to operate and have flourished since.

reason: Talk a little bit about the wine case.

Mellor: It’s a little different in that it was under a different provision of the Constitution, not the 14th Amendment but the Commerce Clause. It involved a woman who unfortunately just passed away, Juanita Swedenburg, and Swedenburg Winery out here in Middleburg, Virginia. She, like so many winemakers around the country, was subjected to a law that made it illegal to ship her wine to individual purchasers in other states. These were protectionist laws that were set up in various states to favor in-state wineries.

reason: Obviously, you could ship your wine to wholesalers.

Mellor: Yes. The wholesalers were really the 800-pound gorillas in this whole thing. They were the middlemen who were profiting—and still are profiting in some states—by the constraints imposed through these protectionist laws. They were very powerful and influential lobbies.

We took Juanita’s case to the Supreme Court and won. That has freed up wine shipment and the ability to get wine around the country. Because of the way states have authority to regulate wine or alcohol under the 21st Amendment, there are still some barriers that can be set up, but this removed a big one.

reason: Eminent domain has been a huge issue for you. How did it present itself as an area that demanded IJ’s attention?

Mellor: It’s a property rights issue. Eminent domain abuse had been of concern to us since our earliest days, but we really didn’t take it on until the mid-’90s, when we came across this situation in Atlantic City, New Jersey. Donald Trump, who owned a casino, had obtained the authority of eminent domain to condemn and tear down the home of an elderly widow right across from his casino in order to build a limousine parking lot to provide what Trump called a proper sense of arrival for his clients. We won that case in court and got tremendous media attention in the process, and that resulted in a deluge of inquiries and approaches to us from folks around the country who were suffering from similar plights.

Frankly, we had not realized just how widespread this phenomenon was until then. It was a terrible under-the-radar-screen tyranny that was sweeping the country. Once we became aware of it, though, we formed a strategic plan to escalate it to national attention and ultimately to the Supreme Court, which we did in the course of the next seven years.

We percolated several cases through the court system, all of which were wonderfully suited to bringing this issue to the U.S. Supreme Court. One of them involved Susette Kelo and several of her neighbors in New London, Connecticut, whose homes were being taken to provide what amounted to amenities for the new Pfizer plant being constructed there. High-end condos or a hotel or an office complex, a variety of things that would purportedly increase the tax revenue for the city and give a more amenable neighborhood for what Pfizer wanted there.

reason: For eminent domain to happen, you have to condemn a property.

Mellor: Yes. As the Supreme Court has done in tragically far too many instances, the words in the Constitution were interpreted or twisted to mean something entirely different from what they were intended to mean. The Constitution says “nor shall private property be taken for public use without just compensation,” and those words “public use” were twisted in a 1954 case to mean public purpose.

reason: That was in the context of urban renewal?

Mellor: That’s right. They razed a slum in Washington, D.C., to put in public housing and other developments. They said clearing the slum was a public purpose, and that was sufficient to do it.

reason: The difference between purpose and use here is that public use had traditionally meant a school, a hospital, possibly a publicly funded hospital, a library.

Comments

|3.3.08 @ 5:19PM|#

reason sucks

SIV|3.3.08 @ 5:38PM|#

There was a proliferation of these licensing laws in the Progressive Era and an explosion of them after the New Deal.

Progressives hate freedom.

|3.3.08 @ 6:10PM|#

Chip Mellor is certainly working for freedom.

Alcohol commerce is a good ol' boy fuck story in ~50 states, and some terrorities. We all know why. Because they can. It's illegal to open a 4th casino in Detroit. MGM and Mike Illitch's wife (He owns Little Ceasers, Detroit Tigers, Detroit Red Wings) are owners of two of the three casino licenses allowed in Detroit. Both are very happy with the status quo. Wherever you live you see government regs that serve no purpose other trhan protect the insiders from competition. It pisses me off no end.

And it is Incumbent Protection, not campaign finance regulation.

Robert|3.3.08 @ 6:42PM|#

But it's better than when they allowed no casinos, isn't it? Oligopoly beats zeropoly.

Robert|3.3.08 @ 11:49PM|#

Mellor: Mandatory disclosure laws are often viewed as a painless way of accommodating some degree of regulation of campaign financing such that people at least know who is backing whom. I think that oftentimes people overlook problems created through disclosure, and we ought to consider those problems and determine if those costs are worth bearing. Any time you have to disclose, you're in essence putting your vote on record. You may feel perfectly comfortable saying, "I back Ron Paul," but other folks may be in a position where coming out visibly for a candidate or an issue could compromise them in their community, in their workplace, in their church or synagogue, or some place like that, and they may be very reluctant to have their name appear not just in some obscure filing in a city hall file cabinet but on the Internet.

Bug or feature? Robert LeFevre and others have criticized the secret ballot. If we don't allow our representatives to vote in secret, why should we allow the people they represent to do so? Wouldn't it be better to know who in the grass roots to credit or blame? And what's wrong with being compromised in the community? Why shouldn't we be able to reward or penalize on the basis of the ones who are ultimately responsible in a democracy, i.e. individual voters? With the secret ballot, what recourse do you have against those who oppose you with their votes?

Mike Laursens of the World|3.4.08 @ 12:30AM|#

Err, umm, like what kind of recourse do you have in mind against those who you think voted the wrong way?

paul|3.4.08 @ 1:28AM|#

Bug or feature? Robert LeFevre and others have criticized the secret ballot. If we don't allow our representatives to vote in secret, why should we allow the people they represent to do so?

Because they represent us.

BECAUSE THEY REPRESENT US.

Sorry, I thought you might not have heard me.

As representatives of...us... we need to know HOW they're representing us. If once they're an elected representative (I like that word) they sneak around in secrecy, and tell us "Yeah, I'd like to show you my representative track record, but I can't do that" then they wouldn't be representing us, they'd be representing themselves.

That's why I can vote in secret (goddamnit) and they fucking can't. I represent me, so my vote is secret. See how that works? It's actually not that complicated.

With the secret ballot, what recourse do you have against those who oppose you with their votes?

Ok, maybe the joke's on me. You a troll? You serious with this comment?

Ok, rocks or gunshots through the front window is always effective. Maybe a molotov cocktail on the side of the house. That one will wake those pesky, non-vote-cooperating neighbors.

stuartl|3.4.08 @ 10:17AM|#

Oligopoly beats zeropoly

Bad beating worse makes bad okay?

|3.4.08 @ 11:48AM|#

SIV--

I was talking to a very smart couple about politics. The conversation moved to the inevitable corruption associated with government power. Though I had remained aloof regarding my own particular leanings, I took that opportunity to remark, as neutrally as one can when mentioning an ideology widely regarded as insane, that that insight was (often) the launching point for those who embrace libertarianism. The husband followed up immediately by adding "or liberal progressivism." Either he was talking about a progressive movement seeking to reduce government purview I had never ever heard of, or he misunderstood me, or I misunderstood him. But I think we'll agree on which was probably actually happening.

Robert|3.4.08 @ 1:07PM|#

Err, umm, like what kind of recourse do you have in mind against those who you think voted the wrong way?

Any legal kind.

"Bug or feature? Robert LeFevre and others have criticized the secret ballot. If we don't allow our representatives to vote in secret, why should we allow the people they represent to do so?"

Because they represent us.

And who do we represent? As long as our votes can affect others, aren't we responsible for effects on them?

Robert

Mike Laursens of the World|3.4.08 @ 3:25PM|#

Any legal kind.

That's a little open-ended. What recourse do you think should be legal? Should it be legal to:
* Take out an ad listing all of the people who voted for or against something?
* Fire an employee or evict a renter who didn't vote the way you wanted him to?
* Challenge the person to a duel?

Paul|3.4.08 @ 4:23PM|#

And who do we represent?

Robert, please, re-ready my original post. Nay, let me quote it for you:

That's why I can vote in secret (goddamnit) and they fucking can't. I represent me[emphasis added], so my vote is secret. See how that works? It's actually not that complicated.

Each voter represents himself, his own desires, his own ambitions, his own self-interest. Yes, even if you're a pinko-commie bed-wetting liberal who thinks that every vote he casts is a selfless act, cast only for the "common good", you're still representing yourself, and your self-interest. Period.

As long as our votes can affect others, aren't we responsible for effects on them?

I'm trying to craft an honest answer here, but I'm afraid that "responsible" may not be the correct term to use when you vote. Because "responsible" voting begins to smack of only voting when it's not in your self-interest, and we all know what lies down that path. More people (including me) have suffered deeply by "responsible voters" who kept voting for the "common good".

Sell "common good" somewhere else, we're all stocked up here.

Robert|3.4.08 @ 4:24PM|#

Yeah, why not?

|3.4.08 @ 4:38PM|#

Smooth move Robert. Trying to get someone to prove a negative is a sure sign you're losing the argument.

Ventifact|3.4.08 @ 4:39PM|#

Laursen --

I think those should all be legal behaviors regardless of motivation. That is, I am a fan of secret ballots and so I don't hope for a world in which a landlord knows how a tenant votes (unless the info is shared willingly). But I do think if you own a building you are under no obligation to let people reside there. Similarly, I do prefer secret balloting but think any legally obtained information should be legal to disseminate through advertising.

And assuming duels are verifiably different from murder -- that the challenged person is not under threat of bodily harm (or coercion) if he decides not to participate in the duel -- there is no reason to keep people from risking their own lives that way. (Provided they aren't, like, blasting away at each other on a crowded bus or something...)

Vent|3.4.08 @ 4:43PM|#

Bud -- he was challenging Laursen to explain why we might have a right to restrict i) speech involving public information, ii) a person's choices regarding use of private property, and iii) consenting persons' rights to engage in dangerous activities that don't involve nonconsenting persons.

Mike Laursens of the World|3.4.08 @ 4:47PM|#

I wasn't arguing for or against anything. I was just trying to draw out more from Robert on what he is getting at.

Colonel_Angus|3.4.08 @ 4:53PM|#

"That's a little open-ended. What recourse do you think should be legal? Should it be legal to:
* Take out an ad listing all of the people who voted for or against something?
* Fire an employee or evict a renter who didn't vote the way you wanted him to?
* Challenge the person to a duel?"

Agreeing with Ventifact, I can fire anyone I want, or ridicule anyone I want in the newspaper. If someone somehow makes their oppinions public, they open themselves up to all sorts of criticism, excluding things like assault, harassment, or property damage. But the secret ballot allows that choice. One can keep their oppinions secret or put them out in public.

And in the case of duels, when there is consent there is no wrong doing. If you get your ass shot in a duel, it's your own fault.

Colonel_Angus|3.4.08 @ 5:53PM|#

" With the secret ballot, what recourse do you have against those who oppose you with their votes?"

@Robert:

One can in turn vote for another candidate, or try to persuade peple to vote for that person or in favor of such proposition or whatever.

Robert|3.5.08 @ 3:22PM|#

One can in turn vote for another candidate, or try to persuade peple to vote for that person or in favor of such proposition or whatever.

But how can you reward or punish them if you don't know which way they're voting? How do you know whom to try to persuade, if you don't know who needs persuading to being with? The elected official's votes are public, but what can you do when people you don't even know, and you can't find out who they are, are voting in someone you don't want?

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|9.23.11 @ 1:00PM|#

You guys sure hate taxes, but you'll drive on the roads that were created by them.
Ayn Rand was a novelist......fiction.