Posted on 06/25/2005 9:50:56 AM PDT by Congressman Billybob
Dear Justice Kennedy,
I agree with what you wrote, this week. No, I don’t mean your part in the decision that any government can take anybody’s house, any time. We’ll get back to that reprehensible case.
No, I agree with your speech to the Florida Bar Association last Friday. Most folks don’t pay much attention to Justices’ speeches on the rubber chicken circuit. I do.
As usual, the Associated Press title was misleading. It said, “Lawyers Must Defend Judiciary from Attacks.” What you actually said was, “When judges are attacked unfairly, it’s proper for the bar over the course of time, in a professional and elegant way, to explain to the public the meaning of the rule of law.” The key is that pesky word, “unfairly.”
I agree with what you actually said. And, I’m sure you agree with me that it is the obligation of a member of the bar – any bar – to attack a judge when he/she has it coming. So, I am about to attack you nine ways from Sunday.
In your Florida remarks, you said criticism of court decisions is fair game, but it’s “worrisome” when the criticism is focused on the judiciary, especially on individual judges. You claim individual attacks “amount to a real threat ... to judicial independence.”
Okay, here’s a hypothetical. What if a particular Justice is uses his/her independence to violate the Constitution? What if that violates his/her oath of office as a Justice? What if the problem is not just one case, but the entire approach that you (excuse me, the hypothetical Justice) takes to judging any case?
Before you urge the organized bar to circle the wagons and protect you from attack, perhaps you should consider Kelo v. New London, decided 23 June, 2005. A bunch of laymen are reading this over my shoulder, so for them I describe the case, and your Concurrence in it. The Court decided, in a sharply divided 5-4 decision, that the City of New London could use eminent domain to take people’s homes, and turn that property over to a private developer who would build hotels, shops and such.
The Constitution’s Takings Clause says that governments shall have power to take private property “for public use” and with “due compensation.” But was this a public use? You agreed with the majority that seeking greater tax revenues made this a public purpose. Well, hellooo, that means anyone can lose their house to any purpose from a high-rise condo to a chicken-rendering plant and it’s all legal.
You filed a Concurrence suggesting the decision wasn’t as bad as it looked because the courts could refuse to uphold the taking if there was a “clear showing” it was “intended to favor a particular private party.” Big darn deal. Fraud and collusion were always illegal.
Bottom line, if you paid attention to Constitutional Law in school, you know the Framers sought to protect “life, liberty, and property.” You know the laws, including the Constitution, protect those three aspects of American life. You also know the Constitution refers to “public purposes,” like docks, navy yards, public buildings, you get the idea.
So, I conclude you deliberately violated the Constitution in this case. And, this is not the first time that you (plus four colleagues) have done that to get a result different than the Constitution requires. You’ve also done that in reverse, striking as unconstitutional a state law even your own Court found constitutional just 16 years ago.
I refer to the Missouri death penalty case of 1 May. I won’t trouble you with the details because you delivered the Opinion in that. You and the other Justices in the majority, jumped up and down on the Constitution with track shoes, in that case.
So, in response to your urging to members of the bar to “explain the rule of law,” I offer this: As long as there is a working majority of Justices on the Supreme Court who believe the law should be whatever they say, there will be no predictable rule of law in the United States. Until Justices who do not honor their oaths of office, or the Constitution, it will be true, paraphrasing Voltaire (1764), “No man’s life, liberty or property is safe as long as the Supreme Court is in session.”
The nation, the Constitution, and the rule of law are all in danger as long as you, others who think like you, remain on the Court. If you mean what you said to the Florida Bar, you will resign from the Supreme Court, tomorrow at noon.
I hope you find this defense of the rule of law to be elegant. Write when you get work.
Quasi-respectfully Submitted,
John C. Armor, Esq.
About the Author: John Armor is an author and civil rights attorney who lives in the Blue Ridge Mountains of North Carolina.
Fifth Amendment (or what's left of it) bump. Since the new interpretation of "public use" is anything that will bring in more taxes, I am going to build a nude night club on my property in my residential neighborhood. If my neighbors don't like it they can call (former) Jusitce Kennedy.
A bunch of laymen are reading this over my shoulder, so for them I describe the case,
A deft and considerate maneuver that escapes many a counselor. Thanks.
ww.stltoday.com/stltoday/news/stories.nsf/nation/story/BF6F99A05DEBCC0A8625702A001A1708?OpenDocument
Hope the link above works, it's a good article. Mentions a local mayor who says, "Taxes from commercial development help build roads, highways, schools and hospitals."
In other words, some taxpayers are taxed at the usual rate, and others, less fortunate, are taxed 100%, their homes confiscated and sold against their will. Sounds like unequal treatment, no?
And if a city is so run down, people leave. Why pour money into it, and seize homeowners' property? Why are city charters more sacred than deeds? When a house is fit only to be condemned, they condemn it. Let them do the same for hopelessly run-down cities. Instead of giving the remaining homes to a developer, give the city and its public holdings to the few hardy homeowners who struggle on in spite of inferior city government and services.
That might put the blame---and the penalty---where it belongs.
Kelo and the other holdouts should have seceded from the city and formed their own community, let that run through the courts for a couple of years.
Anyone for a boycott of Pfizer and every other Ephin' corporation that has directly benefitted from eminent domain?
It haunted me that the system of checks and balances is out of wack and this is what is causing the problem. The Supreme Court gained powers not originally anticipated in Marbury vs. Madison and the rest has been history as they say.
The solution is to introduce a subtle rather than a major shift, to correct this imbalance. Making the Supreme Court Justices accountable to the other branches without requiring "wrongdoing or impeachable offenses" to drive the action that establishes accountability.
I think that an Amendment should be proposed to establish a Supreme Court Veto that would require a Veto over ride vote (2/3rds) from the house and senate and signature by the President. This Supreme Veto would vacate the Supreme Court decision and the Justice writing the Majority Opinion would be removed as well (Obliged to step down). A new justice would be nominated and the reconstituted panel could chose to reconsider the case or accept an opinion written by the dissenting judges as representatives for the other branches.
This makes the person writing the majority opinion directly accountable and changes the balance on the court to force a more considered solution. This obviously would only rarely happen because the bar is so high. But, it creates a serious check to the power of the Supreme Court.
This decision will go down in infamy along with Dred Scott, and Roe v. Wade.
Thank you for your well reasoned thrashing of Justice Kennedy. I hope you will post his reply, should you receive one.
I like it. Thanks.
There is little of less interest to Justice Kennedy than a letter from a constitutionalist exposing Kennedy's errors of judgment. Now if partial namesake EMK would welcome him into the "fraternity" he would take note!
Darn good letter, but still retains an aroma of professional courtesy. More tar, more feathers please.
By the way, has a Sup Ct justice ever been pied? Where are all the civilly disobedient types hiding these days?
I concur wholeheartedly.
Now where have I heard that before?
"When policemen break the law, there isn't any law, just a fight for survival." - Billy Jack
Great post. Thanks.
I appreciate it. Thank you.
Can a big corporation take an invention from away from the inventor because he lacks the wherewithal to develop it?
Can barber A take barber B's small two chair business if he promises to create more jobs and taxes by converting it to a 4 chair barber shop?
There is one problem paragraph, though not from a legal-reasoning POV. Just grammatical:
Okay, here’s a hypothetical. What if a particular Justice is uses his/her independence to violate the Constitution? What if that violates his/her oath of office as a Justice? What if the problem is not just one case, but the entire approach that you (excuse me, the hypothetical Justice) takes to judging any case?
I've bolded the problems. The first one needs to have "is" deleted. The second has a disagreement between subject and object, I think.
Unless I misinterpreted or am wrong. ;-)
I post this grammar-nanny stuff only because it appears you are sending this to Justice Kennedy, and he might notice. Or not.
Sorry, but it won't work. Someone has to enforce the Constitution. Would you rather have the Congress decide (i.e., McCain), or this city council? Or President Clinton? If there had been a better answer than the S.Ct., I think the Framers would have found it. We have to keep trying to put good people on the Court, like Scalia and Thomas. Three more like those two would go a long way towards correcting the problem.
re:...Until Justices who do not honor their oaths of office, or the Constitution, it will be true, paraphrasing Voltaire (1764), “No man’s life, liberty or property is safe as long as the Supreme Court is in session.”
Is there something missing from this sentence after the word "Constitution"? (possibly "are replaced")
This is why I don't post grammar-nanny stuff often.
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