Federalism

The American Prospect on the Kelo Debacle: "It's almost a textbook case of federalism at its best"

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Garrett Epps, the legal affairs editor for the left-wing American Prospect, has a new column taking aim at the various House Republicans who voted last month in favor of H.R. 1443. That bill, also known as the Property Rights Protection Act, was written in order to prevent the sort of eminent domain abuse that the Supreme Court allowed to stand in its notorious 2005 ruling in Kelo v. City of New London, which upheld the use of eminent domain to transfer property from one private owner to another for the sake of economic development.

As Epps sees it, these Republicans are total hypocrites. The GOP typically favors states' rights, he notes, yet in this case Republicans are upset that the Supreme Court allowed the state of Connecticut to call its own shots.

There's certainly some truth to Epps' complaint. Newt Gingrich, for example, recently used Kelo as an example of the sort of judicial tyranny that his presidency would attack, though of course Gingrich completely ignored the fact that in Kelo the Supreme Court did exactly what he claims it should do: Defer to the wisdom of local majorities. So yes, Republicans can be total hypocrites on this and plenty of other issues.

But Epps then proceeds to forfeit the high ground entirely with this whopper:

since the [Kelo] decision, at least 34 states have passed legislation to restrict or ban taking private property by eminent domain for economic development projects.  In all, more than 40 states now have such laws. It's almost a textbook case of federalism at its best, in fact: states grappling with issues of property, economics, and liberty, and contriving local solutions that suit local conditions.

Kelo is only a textbook case of federalism if you ignore the 14th Amendment to the Constitution, which commands: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." As Epps knows, that language means that state and local governments are also bound by the Bill of Rights, which includes the Fifth Amendment's instruction, "nor shall private property be taken for public use without just compensation."

I doubt Epps would be cheering if various state governments started to "experiment" with censorship laws, the establishment of religions, or other things that violate the First Amendment. Eminent domain abuse by the states is no different.

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100 responses to “The American Prospect on the Kelo Debacle: "It's almost a textbook case of federalism at its best"

  1. What’s going on? Has Brian Doherty stopped humping the corpse of the Ron Paul campaign?

    1. necrophilia – its the other white meat

      1. The ghosts of Whitney Houston and Mike-uh Jackson, among others, say, RACIST!

    2. Arf! Arf! Arf!

    3. Has Max stopped wanting to hump Ron Paul?

    4. Older but no wiser.

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  2. As Epps knows, that language means that state and local governments are also bound by the Bill of Rights.

    Wouldn’t it have been much easier for the 14th actually to say that if that’s what it means?

    1. Read the Congressional Record at the introduction of the 14th Amendment, and you’ll see that’s exactly what the 14th was meant to do, at a minimnum. The legislators who introduced it expressly stated that it would guarantee, at a minimum, the protection of the first eight Amendments to everyone as against state power.

      1. Unfortunately, that was lost in the Slaughterhouse Cases, in which the Supreme Court engaged in a terribly disingenuous bit of tortured reasoning to avoid having to rule in what was clearly the correct way – because they just couldn’t have that kind of individual freedom, now could they?

        1. Cue for all the idiots to chirp:

          There’s no right to butcher contained in the constitution.

          1. There’s certainly no right to our precious airwaves!

        2. However, the rights under the takings clause were applied to the states under the Fourteenth Amendment after Slaughterhouse, in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, handed down in 1897.

          Of note, that was actually the first Supreme Court decision to officially incorporate part of the Bill of Rights under the 14th Amendment.

          Cruikshank was arguably worse than the Slaughter-House Cases.

          1. I did a quick search of that decision, and didn’t find any reference to the fifth amendment. The Illinois state constitution did apparently have something like the takings clause, and that is referenced. However, Harlan seemed to base his decision on a principle which predates the constitution, so something like natural law.

      2. I’m not especially interested in the debates or statements in the Congressional Record, I’m interested in what the Constitution says.

        “Amendments 1-8 of this Constitution are now fully applicable to State governments” seems more clear, doesn’t it?

        1. In retrospect, that would have been a much better way to write it. The constitution is prett good, but it seems like a lot of the authors were more concerned with elegant prose than with making their intent unambiguously clear. Or maybe they just didn’t agree about enough to make everything unambiguous.

          1. Exactly. The thing doesn’t read like a tech manual.

            1. Free Speech, Assembly, Press, and Religion – you haz it.

            2. Guns – you haz it.

            etc.

            I say we re-write the entire thing in lolspeak.

            1. Jim’s idea is merely BLINDINLY BRILLIANT!

              Artucl Won – Teh Congris can haz lejislayt powerz in a hows an senut. etc.etc.

              Arrtucl Two – Teh Prezident is teh Execetiv. Lol! But heez picked by teh Electrol Coolij! etc. etc.

              Artucl Free – U can haz Judge Judy and other Judjez. etc etc

              etc. etc.

              Amendmunt Won – OMFG! U can wrship ur own Ceiling Cat; say teh wurdz u want; print teh wurdz u want; cuddle wif teh over kittehs as u wanna; and skratch teh Guverment wif ur claws when it pourz water on u.

              Yeah – this is work that needs to be done…

          2. The constitution is prett good, but it seems like a lot of the authors were more concerned with elegant prose than with making their intent unambiguously clear. Or maybe they just didn’t agree about enough to make everything unambiguous.

            I think that they may have not disagreed enough. If you get ten people in the room that see something as “obvious” they won’t see how it’ll be circumvented or abused by the next generation.

            1. Good point. I hadn’t thought of it that way.

            2. Or more likely, Hamilton just kept it to himself.

      3. I usually assert that a plain reading of the constitution leads one to conclude that the broad language of the Bill of Rights means that they all apply to the states, except for the first. And, that the first still doesn’t apply to the states because of the language. The constitution is the supreme law of the land and the amendments make no distinction as to who shall not violate it and who may.

        For instance the 5th amendment: “No person shall be held to answer for a capital, or otherwise infamous crime…”

        Where does it say “except when arrested by local or state agents”?

        Incorporation was never necessary, IMO.

        1. Erm, well except for the fact that the document was written to create, empower (and limit) the federal government, and the 10th Amendment says that the states are yielding only the specific measure of sovereignty set forth in the Constitution and retaining the rest. Everyone at the time understood the document as not limiting the power of the states, except as expressly set forth. The BoR was understood as applying to Congress.

          The 14th was meant to change that by, at a minimum,applying the first 8 amendments to the states.

          “Selective incorporation” was judicial jackassery that came along later, which was made necessary by the judicial jackassery of the Slaughterhouse Cases.

  3. But in Kelo, it was private property taken for private use, so the fifth doesn’t apply, duh.

    1. Tony, do you want a do-over on this post?

      You may have noticed I am not as nasty as the average H&R personality – I am willing to give you a mulligan before I intellectually eviscerate you.

      1. Fuck you, Fibertymike.

        1. I say it’s SpoofTony, although it’s REALLY hard to tell any more.

          I base this in part on the fact that I don’t recall Tony ever using HTML. Plus it just doesn’t quite sound like him.

          But – B+, maybe even A-, for sure!

          1. What is a spoof? If you can’t tell a difference, is there a difference? Is the cat alive or dead? or neither? or both?

            1. Schroedinger’s Tony?

              I say we just leave the box closed and never bother checking.

              1. Nuke it from orbit. Only way to be sure.

              2. Throw out the box when it begins to stink?

          2. You assume that there was ever a REAL Tony.

            I highly doubt that.

    2. Only through a crazed reading. It is absurd upon its face to argue that the restrictions upon taking property from A for the purely private use of B are less than the restrictions for public use.

      The only sensible reading of the clause is that the “for public use” is an acknowledgment of the known restriction upon the power of eminent domain.

      There were restrictions by common law (and the Ninth Amendment) on the powers of the states, including the ability to turn A’s property over to B without cause. The Fifth Amendment establishes limits on an implied power that it acknowledges in passing.

      What the Fifth Amendment implies is that private property taken for private use is entirely unConstitutional.

      1. “Private property taken for private use” presently falls under the, “that’s fucking STEALING, my man” clause that’s been in force since, I dunno, pre-Cambrian days or so.

        They shot horse thieves in the Old West?. I believe that translates today to shooting iDouche thieves. Or something.

        1. You are talking about a private actor taking directly from a private actor. I’m talking about a private actor using the government to take from another private actor. When the government gets involved, it’s no longer stealing. Otherwise you’re getting awfully close to those nuts who think that taxes are stealing. I mean there’s not much difference between government taking money through taxes and giving it to a corporation in the form of subsidies, and that is pretty uncontroversial. If they can do that easily with money, why not with land? It’s all property, right?

          1. Is this a spoof? Or a deeper truth?

          2. I mean there’s not much difference between government taking money through taxes and giving it to a corporation in the form of subsidies, and that is pretty uncontroversial

            I’m thinking spoof. But you’ve been here long enough to know that is not uncroversial around here. Hence the need for a limited government with enumerated power.

          3. When the government gets involved, it’s no longer stealing.

            When the president does it, it’s not illegal.

      2. The way I see it, if the government takes it, it was taken for public use by definition. If the town council takes it for the purpose of giving it to the mayor’s brother in law does not matter because for ever so brief a moment it was “owned” by the public.

        In my view there is no such thing as taking for private use, hence there is no legitimate dodge as, “But in Kelo, it was private property taken for private use, so the fifth doesn’t apply, duh.”

    3. Next you’re going to argue that the Fifth Amendment’s bar on “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;” doesn’t apply to any case that isn’t a capital case or a case where someone would have an arm or leg hacked off by the state.

      So can I assume that you’re destroying the Double Jeopardy clause?

      1. I agree with Double Jeopardy, but I think Triple or Quadruple Jeopardy is OK if the defendant is a Freeper like John.

        1. The obsession with John and Freepers woudl seem to indicate that this is the usual griefer asshole. Hard to say.

  4. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

    For the last time: write in English only, please. I’m sick of this uninterpretable gobbledygook.

    1. Well, it is over 100 years old, so who could be expected to understand it these days?

      1. now would that be original text, original meaning, or original interpretation?

    2. That’s bullshit and you know it. You can’t take that whole passage as is and try to get some meaning from it. You have to break it down into 5-6 word pieces in order to get the actual intended meaning.

      1. it still needs to be translated from Martian first.

      2. “Congress shall make no law” — sounds good

        “respecting an establishment of religion” — I have little respect for religion, but I suppose I can respect its establishment. Okay.

        “or prohibiting the free exercise” — If you want to work out in this gym, you’ll have to pay up, mofo!

        “thereof; or abridging the freedom” — This sounds like what Congress does. Not sure what it means.

        “of speech, or of the” — Dude, better go home and sober up.

        “press or the right of” — If you want fascism, please press 1.

        “the people peaceably to assemble” — When you bring the shit home from Ikea, there’ll be no cussing!

        “and to petition the Government” — Plenty of that going on.

        “for a redress of grievances” — Got a complaint? We’ll spin it for you until you’re insane!

        Hmmm… Not really working for me, but it does help describe how the government works, and how the courts interpret things.

    3. What is a “privilege” or an “immunity” in this context?

      They say it is a privilege, not a right, to drive. Can states not abridge my privilege to drive?

      1. “”the privileges or immunities of citizens of the United States””

        If the privilege to drive was granted by federal powers, you might be on to something.

  5. What? A liberal left-winger who also is a hypocrite? Do tell.

  6. I doubt Epps would be cheering if various state governments started to “experiment” with censorship laws, the establishment of religions, or other things that violate the First Amendment.

    I’m not familiar with Epps other than a quick scan of subjects of his recent articles for TAP.

    I’m willing to bet he is appalled that states can’t “experiment” with campaign finance laws and other measures which violate the First Amendment. Why assume a progressive gives a fuck about the Constitution as long as the Right People are in charge? Sure enough, he has a recent article on the sanctity of the Commerce Clause.

    1. I was gonna say, “You ‘doubt’ that because you’re a fucking idiot.”

      But yours is good, too.

    2. How’s about a lit’racy test to vote? Federalism at its best! Yeehaw!

  7. Yeah but the Bill of Rights is, like, 100 years old or something and we need legal scholars to interprest it and its really old so should we really be using it anymore?

    1. GO BANANA SLUGS!

    2. This Ezra Klein spoof that completely misses the point he was trying to make NEVER gets old. You libertarians are so funny.

      1. Whereas I’m the queen of comedy! You never know what stupid fucking thing I’ll say next!

        1. derp de derpity derp!

      2. The point he was trying to make wis absurd. It’s probably better for Klein’s reputation that people focus on the 100 years thing.

      3. What point was Klein making? That, because the document in question is “old”, it should be ignored?

  8. I doubt Epps would be cheering if various state governments started to “experiment” with censorship laws, the establishment of religions, or other things that violate the First Amendment.

    Or heaven forbid, they started experimenting with not mandating free contraceptives.

  9. So wait, why are lefties IN FAVOR of eminent domain being used to take houses from individuals with little wealth, power or influence, and give them to big, powerful corporations with a lot of money that buys them political power?

    Is it just because the Democrats are, in this case, too corrupt to introduce this bill?

      1. It’s “social justice” and the “greater good” stop getting it mixed up dammit.

        Ya know, i have to always say “the greater good” a second time in my head in that droney Hot Fuzz manner because of that movie. Lol

        1. It is only a matter of time before they merge.

    1. Is it just because the Democrats are , in this case, too corrupt to introduce this bill?.

      There ya go.

  10. So the Court got the Kelo decision completely wrong. To remedy this, Congress is going to pass an unconstitutional bill?

    How about they only confirm Justices who have read the Constitution instead?

    1. I thought part of the ruling said further legislation could be passed to clear up their lack of comprehension protect property owners.

    2. They read the Cliff Notes.

      Congress has the power to write any law Necessary and Proper to promote the General Welfare and Regulate Commerce.

      1. That would be funny if it wasn’t true.

  11. Sigh.

    “State’s Rights” have never included the “right” to violate Constitutional rights.

    They do, however, include the ability to give citizens additional protections against state encroachment.

    Kelo is SCOTUS abjectly failing to enforce the Bill of Rights, beginning with their de facto amendment of the takings clause to allows takings for any “public purpose” rather than only for “public use”.

    Now, if he wants to argue that Congress can’t, by statute, give protections to rights enumerated in the BOR, I suggest he start by attacking the Civil Rights Act.

    1. All discussion of state’s rights is just nostalgia for slavery. I am so sorry that you can’t keep African-Americans as slaves any longer. Oh, wait. I’m not sorry.

      1. STATEZ RIGHTZ IS TEH SLAVERY DERP ROADZ!!!1 ARGLE BLARGLE YEARGHHH!!!!

      2. How do you manage to not choke on all those straw men you keep puking up?

        1. The strawmen are actually getting blown rather than puked up. The puking only happens when TeamBlue pushes down on the back of the head.

          1. More gay jokes. Hilarious. I wonder why libertarians tend to be straight, white men.

            1. At least I’m bi-curious.

            2. It’s pretty fucking racist of you to assume that we are white.

              1. And genderist to assume we’re straight.

            3. and sexist to assume we are men.

              1. And Ist-ist to assume we’re all libertarians.

      3. What if I’m nostalgic for enslaving Jews or the Irish? Is that okay?

      4. Yeah… anyone who wants states to have rights, pines for the days of mint juleps and slaves.

        You are fucking retarded, Tony, and I don’t use that word lightly.

    2. Now Chony thinks you are a democrat.

    3. In Kelo, it wasn’t even really a “public purpose.” The “public” really wasn’t going to benefit a whole lot from the taking of Ms. Kelo’s little pink house – any benefit to “the public” that could be linked to her property was remote and indirect at best.

      1. “What’s yours is Property of the State if we want it.”

  12. If you’re a member of Team X, then anything other team X members do is good and constitutional, while anything done by a member of Team Y is traitorous and evil. Furthermore, the goodly constitutionalness of Team X behavior is gobsmackingly fucking obvious to any Team X member, while the traitorous evilness of Team Y is incomprehensibly sinister.

    1. Basically, yes.

  13. As Epps knows, that language means that state and local governments are also bound by the Bill of Rights

    Wasn’t some dipshit just here recently claiming the states are not bound by the Bill of Rights?

    1. Ron Paul by any chance?

    2. I have seen dipshits claim that before. Evidently these are people who are unfamiliar with the Reconstruction Amendments.

    3. Wasn’t some dipshit just here recently claiming the states are not bound by the Bill of Rights?

      I can think of nine robed dipshits who have had to be dragged kicking and screaming, amendment by amendment, to that position.

      And I’m not sure they’ve yet officially admitted that the entire Bill of Rights applies to the states.

      1. YES! Technically the Federal government does not guaranty your right to a jury trial in a state court.

  14. Isn’t if funny that the same members of Congress pushing this legislation against eminent domain are the members of Congress trying to force the XL Pipeline which will result in the massive taking of private land through eminent domain in Texas and other states.

    1. No one ever accused the Republicans of NOT being hypocrites.

    2. All pipelines and utility corridors “take” private land. You don’t think the government would let them use theirs do you?

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