Kelo: A Solution

If I'm reading the Supreme Court correctly, if I conduct abortions on my property I'm pretty much untouchable, access to abortions being a fundamental right and all. At least I'd get some kinda strict scrutiny from the courts when the local fascists* come calling.

The big ol' stirrup chair will clash with the dinette, but you do what you have to do.

(*Sorry, I don't know what else to call the illusion of property rights, utterly subjugated to state and corporate aims.)

Comments

[Richard]

Didn't Americans reject mercantilism in the 18th century?

[Deron]

I realize I'm rather thick headed, but..What are you getting at?

[KipEsquire]

I think he's getting to his second pitcher at the pub.

[Stevo Darkly]

I think Jeff Taylor means the government now favors property owners whose property is used for something that promotes the common good (and that would include the provision of abortions, a fundamental right) over property owners who merely use their property for selfish purposes, like living on it and stuff.

An abortion clinic is awfully gross, though. Since health care is a fundamental right, I would have chosen to offer free breast exams.

[Reg]

Similar comment at the corner.

If you want to protect your property from takings, perform abortions there and the court will nullify any attempted exercise of eminent domain, as the "abortion distortion" kicks in to take care of you.

[Jeff A. Taylor]

I bow to Stevo on the public good tie-in. As there are twice as many breasts as uteri, the good must, ergo, be doubled. Unless it's a witch. Then you are on your own.

[metalgrid]

Abortions for some, breast exams for others!

[Sandy]

Too late. This morning I already heard some right-wingers talking about how at least now they can start closing down Planned Parenthood offices and abortion clinics.

No doubt Atrios will claim it's better to lose Roe v. Wade than to let conservatives win.

[Bobster]

I say open a gun store or maybe a shooting range if you know what I mean.

It seems there is a lot of outrage about what is going on but I don't see any real action to stop it. Just a bunch of bitching. With so many people pissed off the property should be surrounded with thousands of armed 'insurgents' by now.

Whew! Now that I am done bitching I can go back to watching Survivor/American Idol/re-runs of the Waco defense.

[Rick Barton]

Jeff,

Shit, I thought you had a real solution. Now the solution seems to be legislators who will pass laws to restrict eminent domain.

[kwais]

I see a three tiered defence of your property, that I have heard from the varios threads and posts here;

1 You conduct abortions. This is different from conducting breast exams, you should be conducting those anyways. I have always conucted breast exams in my living area. (except here and now).

2 You have a shooting range, let them make you get of the property. Which they proved during Waco, that they indeed can. But still, let them show it again.

3 Dump toxic waste on your property. Make it so it is more expensive to clean it up, than any amount they might have saved by bribing local polititians and getting the law to help them get your property.

To be honest, the breast exam and the toxic waste would be the only ones I would be willing to do.

[Mo]

kwais,
You forgot 4. Make your home a habitat for an endangered species or alternatively, bury some arrowheads in the backyard and call it an achaelogical site. 🙂

[barry p.]

This could be the best thing to ever happen to the spotted owl.

[agentalbert]

Kwais: Your #3 is like the "poison pill" defense against a hostile takeover. Excellent.

[Brian]

Is there anyone talking about a constitutional amendment in this area? I realize lesbians getting married and burning flags are a greater threat to our way of life than the de facto abolishment of private property, but seems like something someone could think about.

[Brett]

Brian, the amendment idea has been mentioned, I think in the Bullock interview (see the H&R post below). We need to raise the focus on all existing/future ED litigation.

I just went out and buried some arrowheads and a pair moccasins. I now live on sacred Indian burial grounds.

[Reg]

"Is there anyone talking about a constitutional amendment in this area?"

What would the amendment say? Private property shall not be taken for public use without just compensation?

[Eddy]

... without just compensation?

No, SCOTUS will rule that the authors of the Constitution meant 'just' to be used as an adverb as in "just enough to satisfy the corporate caretakers" rather than an adjective meaning "fair" as in "a just system of government."

[wsdave]

As much as I hate to say it, Washington State (as liberal as it is) has pretty good protections against ED in it's state constitution. I encourage all of you right-minded folks to move to Seattle (or at least King County) and we'll do the FreeState project right here.

[jackson zed]

Well I know what I'm going to do. If the government comes for my house so the mayor's developer son-in-law can build a parking lot or some such, I'm going to plant a bunch of marijuana on it and call the sheriff so he can then introduce my property into his revenue stream via civil forfeiture. Then I'm going to sit back and watch the county duke it out with the city like Godzilla and Rodan over downtown Tokyo. After I get bored watching the fight, I'll marry an African American woman so we can immediately launch a Federal civil rights suit.

Ha Ha! I want to leeve in Ah-meree-kah, no place for me but Ah-meree-kah...

:jackson

[The Wine Commonsewer]

Jeff Taylor: Right Arm. Abortion Clinics it IS.

Reg: Exactly.

[David T]

Wouldn't K-Mart make more profitable (and therefore tax-generating) use of this web space than *Reason* does?

So don't be surprised if you find some changes here before too...PRICES HALF OFF!

[David T]

I meant Wal-Mart of course. But even K-Mart would bring in more revenue...

[nimrod]

This whole business probably relates only to Wal-Mart and other great benefactors of humanity. If Wal-mart wants your hovel and a bunch of others in order to build a big box store to unload cheap but good Chinese products at prices even Wa-Mart employess can afford, who are we to stand in its way? This is the way the market works. One way or another, the big players get their way.
In any case, a lot of ownership is illusory anyway. Life is too short to get all worked up about it. Only losers who don't have shit sit around worrying about this sort of crap. Get a grip, for Chist's sake. Imagining that so-called fascists are coming to get you makes you feel important. Face it, you're not.

[joe]

Reg,

"What would the amendment say?"

It could provide a definition of "public use," and draw bright lines between what meets the definition and what doesn't.

Good luck with that.

[joe]

Has anyone else noticed the "Living Constitution"-reliant reasoning in Clarence Thomas's dissent?

"As noted above, the earliest Mill Acts were applied to entities with duties to remain open to the public, and their later extension is not deeply probative of whether that subsequent practice is consistent with the original meaning of the Public Use Clause. See McIntyre v. Ohio Elections Comm?n, 514 U.S. 334, 370 (1995) (Thomas, J., concurring in judgment). At the time of the founding, ?[b]usiness corporations were only beginning to upset the old corporate model, in which the raison d?etre of chartered associations was their service to the public,? Horwitz, supra, at 49?50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities."

In other words, at the time of the founding, it was "natural to think of" private corporations as being public, because corporations were widely construed to exist to serve the public. Thus, taking land for their benefit did not violate the "public use" clause. But as the understandings and practices that surrounded the operations of corporations changed, it ceased to be "natural to think of" them in this way, and it became "natural to think of" them as being purely private entities, and the taking of land for their benefit ceased to meet the Public Use clause.

Which is a sound, intelligent argument - as understandings and practices change, it becomes necessary to read the meaning of the Constitution in new ways, to account for the new realities. Sometimes, as with the Mill Acts example Thomas calls out, the change of understandings and practices requires exacxtly the opposite interpretation as had formerly been applied.

The term for this recognition of the unavoidalbe realites of applying the Constitution to actual cases is "Living Constitution Jurisprudence." Or, maybe, Clarence Thomas's consitution really is dead, but the date of its passing was circa 1850.

[jw]

"Imagining that so-called fascists are coming to get you makes you feel important. Face it, you're not."

Yes! That is exactly what our lovely government has been telling us for a couple of centuries, at least-- that we are not important! Is the constitution even worth the parchment that it is written on when those that are to interpret it are flatly dishonest?

[Jimmy]

TAXES....IT'S ALL ABOUT TAXES...WE are Taxed to DEATH, and as Voters WE VOTE AGAINST MOST TAXES...the Iminent Domain issue is a Way to circumvent the VOTER and get the MONEY.
There is even Legislation up for Vote in the Congress as part of the "Energy Bill" to turn interstate HighWays, probably other roads as well(that Taxpayers have PAID to Build and maintain) into TOLL ROADS, How Ridiculous is That!!! TAXED ON TAXES!!!!!
WE VOTERS NEED TO HAVE A "TEA PARTY"!!!!

[dan]

If you fucking whiners really believed the shit you spout, you'd grab guns and head for the woods. You don't even have the courage of your stupidities. You have to admire old Tim. If you're going to be a whacko, at least be a whacko with balls. Fucking losers.

[Eion]

Yeah, it's really whacko to get pissed off when the government steals private property and redistributes it. Totally crazy. And stupid to believe that when something is my private property, the government can't take that property when it is forbidden to do so by the constitution (which doesn't deserve a capital C any more). And when the government takes your land, it's just whining.

Yes, that's aimed at you, "dan". Fuckwit, that's the word I'm looking for.

I don't see how grabbing guns and heading for the woods is better than, say, staying at home with your guns and complaining loudly to your elected representatives.

[dan]

Eion-

Oh, yeah, get realy pissed off. Who the fuck cares? You'll be a fucking, whining little loser no matter what the government does. Chances are you're a lot better off than you should be. If there was any justice in the world, you'd be digging ditches. Count your blessing, asshole.

[isildur]

Dan, you seem to have some anger issues. Also some idiocy issues. You should get that looked into. Your fuckwit is leaking all over this blog.

It's funny when someone links to a H&R post from somewhere. You don't even need trackbacks to figure out that it's happened; suddenly, whackos start springing up and spewing their nonsense all over the thread.

[Cyrano]

The new amendment would say that private property should not be taken for any reason. If the government really needs to steal someone's house to defend the country from foreign invaders or something, too fucking bad. Live free or die.

[joe]

Principled I'll give you, Cyrano, but not particularly helpful.

[NaG]

joe: I don't believe that your analysis of Justice Thomas' argument reveals a "living Constitution" basis. What Thomas is pointing out is that the nature of corporations changed, not the meaning of the word "public." Thomas is not arguing that the scope of "public use" changed over time, but rather than corporations themselves changed over time to move them out of the original meaning of the term. See the difference?

[joe]

NaG,

A distinction without a difference. I could say, interstate commerce has changed, with the advent of fast interstate travel, mass media, and the internets; but Thomas abhors any reasoning that takes that change into account. He's always hammering away at the argument that the correct way for the Constitution to change how it reacts to changing circumstances is through the amendment process. His "Dead Constitution" philosophy does not, when applied in a principled manner, recognize either of the shifts you point out as a legitimate reason to read the Constitution differently from the people who created it.

Except, apparently, when it comes to for-profit corporations and the mill ponds they create.

[nmg]

"Principled I'll give you, Cyrano, but not particularly helpful."

Helpful to whom?

nmg

[fyodor]

joe/NaG,

I don't know how Thomas's reasoning does or doesn't comport with his past decisions, but I think that's the perfect way to incorporate the changing world into a non-changing Constitution. The best example is that blacks and Indians were not considered entirely human back in the day and thus were not entitled to the full protections of the Constitution. Now they are considered human and thus are entitled to those protections. It would be ridiculous to say that only the framers' exact view of how the Constitution should be applied should matter today. But it would be equally aggregious to treat the Constitution like some abstract work of art, open to any interpretation any individual may see in it. The principles in the Constitutution are set. The way they get applied may change in accordance to changing circumstances. That non-human are considered fully human now and that corporations are not considered arms of the government are two such changed circumstances.

[joe]

fyodor,

I've never seen anyone advocate for treating the Constitution "like some abstract work of art, open to any interpretation any individual may see in it."

I've seen people argue that the interpretation and application of the text needs to be informed by precedent. I've seen the argument that the courts should consider the changes in society, technology, and the economy when applying the principles of the Constitution.

And I have seen a large, lucrative industry built around the straw man argument that there is a powerful school of jursiprudence that argues in favor of interpretting the Constitution without any reference to history, text, or logial association.

[NaG]

Actually, joe, the distinction is huge, for the reasons fyodor pointed out. An originalist would not constrain the meaning of the word "commerce" to only those forms of trade that was in existence at the time the Constitution was ratified. The originalist acknowledges that the ratifiers intentionally used an indefinite word so as to describe a range of action. The question then becomes whether a new act fits under the scope they created. Justice Thomas analyzed the scope the ratifiers created for "public use," and rightfully acknowledged that corporations, over time, have worked their way outside that scope. Thomas is not changing the original intent by so doing.

A "living Constitution" model would not care about what the ratifiers thought "public use" meant with regard to corporations. The only inquiry would be whether, in today's environment, corporate ownership SHOULD be considered "public use." It's a pure policy decision, unmoored from anything other than the Justice's own personal opinions.

[fyodor]

joe/NaG,

Well y'know, sometimes the proof's in the pudding. As opposed to...the pudding instructions?? 🙂

joe, I don't doubt that no one has ever seriously advocated interpreting the Constitution like what do you see in that cloud? The thing is, the results of "Living Constitution" decisions have sometimes seemed that way. And the whole notion of a "Living Constitution" seems to imply that we can re-interpret the Constitution itself. Maybe it was just a poor choice of words, but that's what it makes me think!

NaG,

Likewise, I believe I've heard original intenters claim that the exact perspective the framers had is what we need to adhere to today. And I'm skeptical of that.

Another good example is flag burning. I wouldn't be surprised if the framers would not have thought the 1st Amendment protected flag burning. Today we have a broader idea of constitutes "speech" in a meaningful sense, just as we think of corporations differently today. Should we be limited to the Framers' idea of what constitutes "speech"?

[Eric the .5b]

Joe, considering that you've argued that there is no possibility of interpreting the Constitution beyond what one wants it to mean, I'd say you need to start picking that straw out of your sleeves.

[meredith]

Could someone PLEASE draft me a constitutional amendment defining "public use"? There has to be someone out there who can do it...