Be Slightly Less Afraid of President McCain (But Only Slightly)

David Weigel | August 6, 2007

Apropos of today's story by Ilya Somin, Ryan Sager reports that John McCain favors a Constitutional Amendment to protect property rights.

I have co-sponsored legislation to forbid this kind of government taking; Congress and the States should follow Iowa's lead and pass such laws. But laws defending private property are only as secure as the judges that defend those laws. Kelo passed narrowly, supported by a five to four majority with a track record of legislating from the bench. As President, I pledge to appoint strict constructionist judges who respect the Constitution and understand the security of private property it provides. If need be, I would seek to amend the Constitution to protect private property rights in America.

I agree with Somin that state ballot referenda are the most effective way of reforming property rights, and I agree with McCain rhetorically. So, anyone know why McCain didn't endorse Arizona's Prop. 207 in 2006?

Comments

lunchstealer|8.6.07 @ 12:31PM|#

Be slightly less afraid of President. But do not taunt President.

Anheiser-Busch reminds you to enjoy President responsibly this holiday season.

Sorry, not meaning to make fun of typos on a blog, but those lame one-liners just kinda stomped into my brain and refused to leave by any means other than keyboard.

lunchstealer|8.6.07 @ 12:34PM|#

And in the course of my typing lame one-liners and the associated disclaimer, the typo was fixed.

McCain has never struck me as unalloyed evil, or even unalloyed authoritarian. But he's so caught up in Doing The Right Thing™ that he could give a fuck about the law of unintended consequences. Or the 1st Ammendment. Or principles, sometimes. Because dammit, there are principles at stake!

|8.6.07 @ 12:34PM|#

I pledge to appoint strict constructionist judges who respect the Constitution...If need be, I would seek to amend the Constitution to protect private property rights in America.

Is it me or is that statement kind of an oxymoron?

And then there's the fact that all the folks yammering about "constructionism" dump that argument the minute it's inconvenient. Read Dahlia Lithwick's nice takedown of Clarence Thomas's inconsistent constructionism over at Slate.

|8.6.07 @ 12:40PM|#

madpad,you got it.Pass an amendment to enforce an amendment.This only makes sense in Washington.How can someone this ignorant be a senator,much less president?

lunchstealer|8.6.07 @ 12:42PM|#

You know, while I think that the public use thing is pretty clear myself, I wouldn't find an amendment just clarifying it for the 'living document' types amiss.

Ditto the "Well regulated militia" clause. I'm actually a little ambivalent on whether the right to keep and bear arms is 100% necessary. But I'd just as soon that the constitution be blindingly clear so that people can't weasle on the whole thing.

Not that they don't weasle on the 1st Amendment anyway, (I'm looking at you McCain) but at least it would make them work harder on both takings and gun control.

|8.6.07 @ 12:43PM|#

Read Dahlia Lithwick's nice takedown of Clarence Thomas's inconsistent constructionism over at Slate.

Link?

|8.6.07 @ 12:48PM|#

Who was the last member of the Supreme Court that was not predominantly result-oriented? (My suggestion is the second Justice Harlan, though Lewis Powell might qualify.)

What does it say about the intellectual integrity (or lack thereof) of a scold like Scalia or a toady like Uncle Thomas who pretends otherwise?

|8.6.07 @ 12:48PM|#

Eeek, posting from my parent's computer, got my name wrong. Sorry Wary.

|8.6.07 @ 12:50PM|#

Read Dahlia Lithwick's nice takedown of Clarence Thomas's inconsistent constructionism over at Slate.

Link?

Here

|8.6.07 @ 1:00PM|#

This is just red meat for a particular kind of movement republican.

John McCain probably doesn't care about takings, most people don't.

Its an easy issue to talk fire and brimstone on because it has little to do with the actual job of being president.

When JM talks about doing the actual job, he is hardly reassuring.

Jennifer|8.6.07 @ 1:01PM|#

What good would another Constitutional amendment do? The problem with Kelo is the Supreme Court chose to ignore the one already there, by interpreting "public use" to mean "anyone who will pay more taxes than the property's original owner."

x,y|8.6.07 @ 1:13PM|#

Lithwick's takedown is hardly that. Her analysis is specious.

For example, she says that: "In [Morse v. Frederick], he [Thomas] made the bold claim that students simply do not have any right to free speech in school. Why? Because those who framed the relevant constitutional language would not have expected students to have First Amendment rights while in school.

This is an extraordinary claim for many reasons, not the least of which is the fact that public schools did not exist when the First Amendment was drafted."

As an aside, let me say first that students should have the same speech rights as everyone else.

As a matter of constitutional interpretation, though, I don't see what Lithwick is getting at. It is perfectly compatible with originalism to say, as Thomas does, that students do not have unfettered free speech rights because the drafters of the First Amendment would not have thought that students should have unfettered free speech rights. The fact that public schools didn't exist in the late 18th century is irrelevant. Lithwick's misunderstanding of originalism taints her analysis.

|8.6.07 @ 1:14PM|#

No, Jennifer, they didn't. The court did not rule on what was a public use. They ruled that the legislature can define that term as they see fit.

Which, in the world John McCain lives in, counts as legislating from the bench. That's right, legislating from the bench now includes deferring to the legislature on the definition of a term whose meaning is disputed.

This Bizarro-world definition of "judicial activism" and "legislating from the bench" is how we can tell that neil paul is right - this is just McCain's attempt to ingrate himself to a segment of the Republican base he's having very little luck with - those who use the language of judicial modesty to describe right-wing judicial activism.

|8.6.07 @ 1:15PM|#

So, anyone know why McCain didn't endorse Arizona's Prop. 207 in 2006?

Because he wasn't slipping in the presidential polls back then and desperately trying to find some way to regain some traction with likely Republican voters?

x,y|8.6.07 @ 1:21PM|#

joe,

Let's say the legislature defined "the freedom of speech" (in the First Amendment) as "free speech for Republicans but not for Democrats." Let's also say, a la Kelo, that the Court says the legislature may define the phrase as it sees fit. Would you be defending the Court's analysis then? Or would you be howling about judicial activism?

|8.6.07 @ 1:24PM|#

No, Jennifer, they didn't. The court did not rule on what was a public use. They ruled that the legislature can define that term as they see fit.

joe, they ruled that legislatures can define "public use" to mean "private use". They ruled that legislatures can define it as "anyone who will pay more taxes than the property's original owner."

Yeah, they didn't make those definitions mandatory. Real comforting. Sorta like if SCOTUS ruled that legislatures can pass a law allowing "anyone to kill or maim joe for any reason whatsoever with no consequences." Would you feel comforted that this was permission to do so, rather than a mandate?

|8.6.07 @ 1:28PM|#

x,y,

I am neither defending nor howling. I'm stating facts, as they tend to be rather rare on threads about this topic.

|8.6.07 @ 1:34PM|#

jh,

joe, they ruled that legislatures can define "public use" to mean "private use".

Not quite. They ruled that legislatures can define "public use" as "private ownership that advances a public purpose."

They ruled that legislatures can define it as "anyone who will pay more taxes than the property's original owner." That's not quite true, either. The NLDC put forward a whole raft of public purposes, one of which was tax revenue, and the Court said that the they had obviously put a lot of thought into it, and the legislature approved it, so they weren't going to second guess them.

Once again, they did not make a substantive ruling on what is a public use. They deferred to the legislature.

Real comforting. I didn't make my point to be comforting, but to show the flaw in McCain's logic.

Since you asked, I would have liked to see them draw some lines, as the concurrance and O'Connor's dissent discussed, too.

x,y|8.6.07 @ 1:42PM|#

Relevant joe comment No. 1:

No, Jennifer, they didn't. The court did not rule on what was a public use. They ruled that the legislature can define that term as they see fit.

Which, in the world John McCain lives in, counts as legislating from the bench. That's right, legislating from the bench now includes deferring to the legislature on the definition of a term whose meaning is disputed.

This Bizarro-world definition of "judicial activism" and "legislating from the bench" is how we can tell that neil paul is right - this is just McCain's attempt to ingrate himself to a segment of the Republican base he's having very little luck with - those who use the language of judicial modesty to describe right-wing judicial activism.

Relevant joe comment No. 2:

I am neither defending nor howling. I'm stating facts, as they tend to be rather rare on threads about this topic.

Yep, nothing but facts there.

SIV|8.6.07 @ 1:48PM|#

Read Dahlia Lithwick's nice takedown of Clarence Thomas's inconsistent constructionism over at Slate.

Not Ms Lithwick this time, although she has quite a few Clarence Thomas "hit" pieces over there.
I was quite disappointed in Doug Kendall and Jim Ryan's "takedown" of the most libertarian sitting Justice of the Supreme Court as there was nothing challenging about it. They make liberal-based assumptions on intent and torture the meaning of the word "voluntary".

|8.6.07 @ 1:52PM|#

x,y,

I'd list your relevant points, but you don't have any.

Yes, I stated the facts of the case, and then offered an opinion about McCain's motivation.

So?

x,y|8.6.07 @ 1:57PM|#

I made in argument, just in response to another point. Your pointing out that I haven't said anything substantive about your post is irrelevant, but nice try.

So?

So you claimed you were only stating facts. Then you smeared a bunch of H&R posters by saying that's lacking here. Of course, as I pointed out -- and you just admitted -- you weren't just stating facts. You state one fact and then launch into a rant (which was hardly limited to a restatement of facts).

x,y|8.6.07 @ 2:00PM|#

Serious questions for you joe:

1. If the Court said merely what you say it did (that the legislature may define the phrase as it sees fit), do you think Kelo was rightly decided?

2. If yes, what do you think of my hypothetical?

Chucklehead|8.6.07 @ 2:16PM|#

I like joe's selective federalism.

We need national health insurance and minimum wage laws, but states know best what "public use" is.

x,y|8.6.07 @ 2:21PM|#

Democrats and Republicans seem to be equally selective with their support of federalism.

And state-level solutions are just as wrong as federal solutions. The problem with both is that the state is interfering with individual choices.

Jennifer|8.6.07 @ 2:23PM|#

We need national health insurance and minimum wage laws, but states know best what "public use" is.

Maybe the courts could simply redefine the word "minimum" to mean "the maximum amount of money you're allowed to pay."

|8.6.07 @ 2:24PM|#

x,y,

Quesiton 1 I answered at 1:34 PM. Since you asked, I would have liked to see them draw some lines, as the concurrance and O'Connor's dissent discussed, too.

Which pretty much answers question 2, as well.

Chucklehead, I'm sure the joe in your head expressed support for what the Court did. If you're going to respond to what I wrote, make an effort to read it first.

|8.6.07 @ 2:30PM|#

x,y,

How about in the future, you just jump to the serious question? I still neither know nor care what you're complaining about.

I stated facts about the decision, and clarified that I was just stating the facts of the decision what someone got confused and thought I was defending it.

Expect this to be the last response to your quibble. The problem with wrestling with a pig is that the pig enjoys it.

Jennifer|8.6.07 @ 2:49PM|#

The problem with wrestling with a pig is that the pig enjoys it.

So that's why you keep coming back here!

x,y|8.6.07 @ 2:50PM|#

joe,

I must have missed the line-drawing you speak of Kennedy's concurrence and O'Connor's dissent. Could you please cite to a page in the opinion?

Kennedy says that, "A court confronted with a plausible accusation of impermissible favortism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government's actions were reasonable and intended to serve a public purpose." This hardly seems like line-drawing. In fact, he accords substantial deference to any legislative determination.

O'Connor's says while the courts "give considerable deference to legislatures' determinations about what governmental activities will advantage the public .... economic development takings [are not constitutional]."

In the end, both Kennedy and O'Connor are willing to give the legislature significant discretion. They appear only to disagree on the result.

In neither opinion, though, can I find this line-drawing you're talking about. Substantial deference is not the same thing as line-drawing.

x,y|8.6.07 @ 2:57PM|#

I still neither know nor care what you're complaining about.

I stated facts about the decision, and clarified that I was just stating the facts of the decision what someone got confused and thought I was defending it.

You know very well what I'm "complaining" about. I called your BS. You said you were just stating the facts. At the same time you were talking out of the left side of your mouth, the right side launched into an opinion about McCain. McCain is a piece of sh*t and deserves every bit of derision hurled in his direction. But to say you were just stating the facts is laughable.

Expect this to be the last response to your quibble.

So when you get called to account for your doubletalk you leave the playground. I thought better of you than that.

|8.6.07 @ 2:58PM|#

x,y,

Substantial deference is still a rebuttable presumption, and would have created grounds on which a plaintiff could challenge the presumption. The majority decision stated that the legislatures' and city's assertion of a public benefit was the final word, absent actual misbehavior. In other words, the majority decision eliminated the possibility that a non-corrupt decision could be mistaken.

O'Connor, as you acknowledge, wanted to categorically strike down economic development as a public purpose justifying eminent domain.

You might wish they went further, but in both cases, they justices state that the Court had the authority to make a judgement call about whether a public purpose was legitimate, a power the actual decision denies to the court.

|8.6.07 @ 2:59PM|#

Still here, buddy. Just not playing your playground games.

x,y|8.6.07 @ 3:05PM|#

So in the free speech hypothetical you would be OK with some type of substantial deference standard?

If the legislature said "freedom of speech" means "free speech for Republicans but not for Democrats" (or some other noxious definiton), and someone challenged it on constitutional grounds, you would be OK if the Court accorded that definition substantial deference?

|8.6.07 @ 3:24PM|#

x,y,

Such a law couldn't even sustain a substantial deference standard, so your question is moot.

I think you're getting tangled in your reasoning. What point are you trying to make?

|8.6.07 @ 3:32PM|#

x,y,

The Constitution gives the government the right to determine what is a public use. There is no similar power to define free speech.

A better comparison would be the requirement to get warrants for searches. They are only supposed to issue upon "probable cause." Well, what's probable cause? Obviously, there's some judgement to be made there.

x,y|8.6.07 @ 3:52PM|#

joe,

I'm not tyring to make any point (thus far), I just want to know where you're coming from.

And I don't see where in the Fifth Amendment the "goverment" (I assume you meant to say the legislature) may determine what qualifies as "public use." The Fifth Amendment provides, in relevant part, that "private property [shall not] be taken for public use, without just compensation."

If you believe the legislature may define "public use" then it follows that it should be able to define "freedom of speech."

So my question is not moot. I take it from your answer, though, that you believe courts should apply a substantial deference standard to legislative definitions of constitutional phrases. And given this standard, I take it you believe it's a slam dunk that the definition in my hypothetical would not pass muster under even this very deferential standard.

I agree that it wouldn't pass muster. But I wholeheartedly disagree with the notion that: (1) the Congress should be able to define constitutional phrases; and (2) that even if they have this power, that courts should accord those definitions substantial deference.

This type of reasoning leads to the curtailment of free speech and civil liberties.

|8.6.07 @ 4:21PM|#

SCOTUS basically kept what to do with property within a state, within the state. I saw that as a positive ruling, and it has allowed states to tighten up their definition of "public use". The citizens have won to some degree in a few states because some states have made it tougher to seize property.

Why should the federal government get involved? I don't view them as the answer to much of anything.

Jennifer|8.6.07 @ 5:39PM|#

SCOTUS basically kept what to do with property within a state, within the state. I saw that as a positive ruling, and it has allowed states to tighten up their definition of "public use".

I view it more as the weakening of an individual right at the expense of government power, by weakening one aspect of the fifth amendment.

The fifth amendment also deals with the right against self-incrimination. If some state ruled that making people testify against their own selves didn't violate that right, and the Supremes decided to let the states decide for themselves, I wouldn't view that as a positive ruling either. "Keeping testimony within a state, within a state."

It's the individual, not the state, that needs protection against eminent domain, yet it's the state, not the individual, that's strengthened by the Kelo ruling.

x,y|8.6.07 @ 6:09PM|#

Jennifer's analysis is spot-on. An erosion of liberty is not OK just because the states (rather than the federal government) are setting the policy.

|8.7.07 @ 11:34AM|#

x,y,

And I don't see where in the Fifth Amendment the "goverment" (I assume you meant to say the legislature) may determine what qualifies as "public use."

By putting the phrase out there, without a definition, they are putting the onus for defining it on the government, sort of like "cruel and unusual."

I can see your point about the possibility of Congress (or state legislatures) having too much wiggle room to redefine terms found in the Constitution, but there has to be some room, as they Constitution doesn't come with a glossary.

But regardless, we're a little off-track here. We've been using "define" in two senses. The Court has ruled that Congress and the states are allowed to define "public use" to mean "a use which advances a public purpose." They either did this immediately after the War of Indepdendance, when they upheld the Mill Acts, or a few decades later, when they allowed textile mill owners to use the Mill Acts for ponds that drove mills without common-carrier-type restrictions.

What Kelo and Berman and the DC case (Hechts? Hechinger?) did was look at the deferense to which Congress and the states are entitled when defining "public purpose."

brian|8.7.07 @ 1:20PM|#

Let the states decide........?

Oh wait no, that would require consistency on the part of supposed supporters of federalism. Silly me.

(my opinion: i'd vote yes on the amendment--i'm not a hardcore federalist)