Posted on 08/19/2005 8:41:48 PM PDT by FReethesheeples
A Supreme Property Rights Disaster In The Making More Kelo on the SCOTUS horizon?... [James S. Burling] 8/15/05
After a term marked by the Supreme Court’s utter contempt for property rights, those of us who happen to think there is something special about allowing old widows to keep their homes were not prepared for an even more bitter defeat. Yet, that is what President Bush handed us with the nomination of John Roberts.
The battle over property rights is not a conservative versus liberal thing. It’s more a struggle between those who believe in the power of the state to dictate how we get to use our land and homes versus those of us who believe that the state has no business destroying our right to make reasonable use of our property.
Guest Contributor James S. Burling James S. Burling is a Principal Attorney at Pacific Legal Foundation [go to Guest index]
That is because when government can go about destroying with impunity our ability to use property, none of our liberties can be safe.
As James Madison put it, “Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.”
This spring, the Court handed down a series of cases that stand for the proposition that today in America, no man (or widow) is safe.
In a case out of Hawaii, the Court held that courts had to defer to a legislative scheme to reduce gas prices by controlling the rents paid by gas stations--even though it was proven in federal court that the scheme would have no such economic effect.
In a case out of San Francisco, the Court held that landowners may no longer have their day in federal court when a local government has violated their rights guaranteed by the Takings Clause of the Fifth Amendment. San Francisco regularly tells hotel owners that they must pay a “fee” of hundreds of thousands of dollars for permission to rent existing rooms to tourists.
Now landowners can no longer go to federal court to argue that bizarre and extortionate policy violates the federal constitution’s proscription against “taking without just compensation.”
But the most notorious decision of this term was the 5 to 4 Kelo decision that upheld the raw power of the City of New London, Connecticut, to destroy a neighborhood of homes, including that of an 87 year old widow who had lived in her home since 1918.
So long as a “public purpose” is met, in this case by providing some aesthetic value to a large corporate headquarters project, the Court will not interfere. The language in the Constitution that property can be taken only for “public use” were just words to the Courts–words that can be shaped and reshaped to meet the needs of the state.
But if an 87 year old Connecticut widow can have her property rights destroyed, how about dozens of elderly landowners, many of them widows and widowers, near Lake Tahoe?
That is where Judge Roberts comes in.
In a notorious case in 2002, John Roberts, then a private attorney, argued that several dozen mostly elderly and middle class landowners should not receive a penny in compensation even after a local land use agency had prohibited all use of their property near Lake Tahoe for nearly 30 years.
In a nutshell, Roberts argued that impacts to property owners must be balanced against the utility of the regulation–in a way that tilts almost every time in the government’s favor. Unfortunately for the landowners, the Court agreed with him.
Of course, one might argue, Roberts was only doing what he was being paid to do as a high-priced lawyer to represent his client. But why then did he take the case for a “substantially reduced” fee as the chief of the Tahoe Regional Planning Agency admits?
More disturbingly, Robert’s representation of the agency is entirely consistent with the statist philosophy he expressed in a 1978 Harvard Law Review article on land use law. He argued against clear rules that would put boundaries on government power over property in favor of essentially the same government-friendly “balancing test” that he advocated for in the Lake Tahoe case.
Even more troubling, he proposed a scheme that would deny money to landowners whose property is taken, using the sort of rhetoric that reminds us of Bill Clinton’s prevarications over the meaning of the word “is.” Roberts wrote: “The very terms of the fifth amendment, furthermore, are sufficiently flexible to accommodate changing notions of what compensation is ‘just.’”
Put another way, what we have here is not the “living constitution” so derided by strict constructionists, but a “mutating virus” infinitely malleable in the service of the state, and undeniably threatening to the rights of property owners. Justice O’Connor was a swing vote on property; with Roberts it will be the property owners who will be twisting in the wind. tOR
copyright 2005 Acton Institute
I undeerstand externalities, having taken econ at Yale and elsewhere, and having worked as an intern at CBO, but what is disturbing about this is the following quote from the article:
"In a nutshell, Roberts argued that impacts to property owners must be balanced against the utility of the regulation "in a way that tilts almost every time in the government's favor.""
I smell a civil war on the horizon if we don't start putting some people in Washington that are true to the Oaths that they swear that UPHOLD AND DEFEND the Constitution of these United States.
"In a nutshell, Roberts argued that impacts to property owners must be balanced against the utility of the regulation "in a way that tilts almost every time in the government's favor."
I hate the word utility.
Screw that commie Millsian crap.
Good analysis of yours to Torie @ # 19:
"For someone familiar with the term "externalities," you are surprisingly hasty. Risk associated with uncertainty regarding property rights is an enormous negative externally. In the limit, when property rights are not enforces at all, you arrive at the Hobbesian nightmare.
"So, if you want to take into account externalities, then take into account all known ones. As soon as you include that which stems from the owner's uncertainty about his rights to the property in his possession, it will outweigh any other positive ones you may come across."
"Make Tories proud --- be consistent."
My comment: Well put!
Knowing something about Lake Tahoe, the problem was it was being slowly turned from a pristine lake into a cesspool from too rapid development without adequate sewage infrastruture.
On the related note of property, you might be interested in this story if you haven't heard about it already:
"Migrants awarded vigilante's Ariz. ranch"
http://www.freerepublic.com/focus/f-news/1466905/posts
Risk is a cost. But risk associated with trying to incorporate economic externalities into the price system is an economically efficient risk cost. Of course, what was happening here was going off at the handle without really knowing the facts of the case. It was one of those ideological knee jerk thingies. I will react negatively to that each and every time it happens, unless my knee happens to be jerking. And so it goes.
I hadn't thought of John Stuart Mill as a commie unitl you mentioned it just now. I suppose there are "dialectical" & even Marxist implications of "utilitarianism."
;^)
After all, aren't "needs" the rough equivalent of "happiness" or in the later ulilitarian's terms: "Utils." ("Utils" were defined as "Units of happiness" or "Units of pleasure," as I recall.)(sp?)
Are we talking with or without money involved?
Thanks for the following Link:
"Migrants awarded vigilante's Ariz. ranch"
http://www.freerepublic.com/focus/f-news/1466905/posts
Implicitly trusting professional big-government politicians kills free societies, and therefore is a terrible, self-destructive idea.
This statement in itself could mean anything. I for one am not going to sway back and forth with every article that comes out on Roberts. The stuff I have been able to dig up on him shows him to be conservative.
Lawyers work for people and argue their cases, criminal lawyers defend known murderers frequently and try to get them off. I do not know for sure if he actually utter these words or not and will not allow myself to think one way or another until I can research this on my own and find out what he actually said and what he argued for or against.
The main thing is this, there is nothing in what this article says that indicates he is for the public purpose stance of the supreme court, what the article talks about is the compensation factor. We don't know what the whole case was in Tahoe but I am going to find out and as far as the quote he made about the 5th amendment I am going to find out what he meant by that, indeed, I am going to find out if he even said it.
Karl Marx couldn't have put it better in the first plank of the "Communist Manifesto".
Which doesn't mean quite yet that I will associate Roberts with your philosophy.
As it stands..our only defense is to pass state legislation or initiatives to limit takings to govt. needs and not private.
I'm afraid on the federal level the decision is done for a long time.
With a left/right we need to handle this on state, county, and city level. Cut them off at the knees.
What's commie about utility?
NO LONGER A JOKE .....
One man says to a second man: "Do you believe in the First Amendment freedom of speech?"
The second man says: "Of course I do."
The first man then asks: "Do you believe in the Second Amendment freedom to bear arms?"
The second man replies: "No, I don't."
The first man insists: "Then shut up!"
The moral of the story is: you can have your rights, but you have to protect and defend them, too.
"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free."
Ronald Reagan
Many thanks for your kind words.
Amen to you at #37.
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