Posted on 10/21/2011 5:23:13 AM PDT by 1010RD
U.S. Supreme Court Justice Antonin G. Scalia said Tuesday he does not believe the high court's "infamous" Kelo decision of 2005, which held that cities can take land from some residents with compensation and give it to others for economic development, will be lasting law.
"I do not think the Kelo decision is long for this world," Scalia said in a speech to Chicago-Kent College of Law.
He compared the court's decision in Kelo v. New London, Conn., No. 04-108, to the Dred Scott case, which held that slaves were outside the protection of the U.S. Constitution, and to the court's decision on abortion, Roe v. Wade.
The high court has made "many mistakes" in its 200 years, Scalia told the audience. But he said the court has made very few mistakes in political judgment that provoked overwhelming public resistance.
Regarding the abortion decision, Scalia said as an aside, "in the circles in which the justices traveled, abortion was considered no big deal."
But Kelo, Dred Scott and Roe v. Wade were the three cases he mentioned that he said provoked great, public resistance.
Some surveys show as much as 80 percent of the public opposes the Kelo decision, Scalia said.
He said he is not arguing that high court decisions should be based on public opinion.
His point instead, he said, was that "the form of analysis through which judges attempt to shape the Constitution" to what they consider the needs of society "are doomed to fail."
In answer to a question from the audience about the politicization of the U.S. Supreme Court, Scalia responded:
"The court has not been politicized. The process of selecting judges has become politicized."
This is because, Scalia said, the American public figured out that what the Supreme Court was doing with the theory of the "living Constitution" subscribed to by some justices was "rewriting the Constitution."
If justices intend to rewrite the Constitution, Scalia said, then the selection process for justices "ought to be politicized" and he would prefer that rather than allow the Constitution to be rewritten without interference.
Scalia addressed a full house in the Chicago-Kent auditorium as part of a half-day conference on "Judicial Takings: Property Rights and the Rule of Law."
He delivered a strong defense of property rights under the Constitution.
And he said the Fifth Amendment's prohibition against taking private property for public use without just compensation applies to judges as well as to legislatures and the executive branch.
Scalia's specific subject was the court's decision last year in Stop the Beach Renourishment Inc. v. the Florida Department of Environmental Protection. No. 08-1151.
As background, Scalia said, "the framers attached a good deal of importance to property rights, much more than most modern societies," including American society today.
The framers of the Constitution "would be astounded by the modern idea" in the U.S. "that substantive due process applies to life and liberty, but not property," he said.
In the Florida case, he said, the state of Florida decided to restore some beaches that had been eroded. The state intended to deposit new sand so that the beaches would extend 75 feet further into the ocean.
The state of Florida would own the new land created. The beachfront property owners would continue to own their land up to the mean high water line that existed before the state extended the beach.
Beachfront property owners sued on several grounds, including that the state was taking without just compensation their right to have their property touch the water.
The Florida Supreme Court held that the rights the petitioners claimed, including the right to have their property touch the water even after the beach was extended by the state, did not exist.
In an 8-0 decision, the high court ruled that Florida Supreme Court's action was not a violation of the "takings clause," Scalia said.
Justice John Paul Stevens, who owned beachfront property in Florida, recused himself.
But a much larger issue divided the high court in this same case, Scalia said, namely "whether judicial decrees are ever subject to the takings clause in the first place."
The Stop the Beach Renourishment decision was written by Scalia and concurred in by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Clarence Thomas.
It held that judicial decisions are subject to the takings clause of the Fifth Amendment.
Four other justices, Anthony, M. Kennedy, Sonia M. Sotomayor, Stephen G. Breyer and Ruth Bader Ginsburg wrote in separate opinions that the plurality decision that judicial rulings were subject to the takings clause went too far and was unnecessary in the current case.
Scalia disagreed. "We didn't take the case to decide Florida law, for Pete's sake," he told the audience at Chicago-Kent.
"There is no excuse not to tackle that question head on. We need to know what judicial questions do violate the takings clause."
Scalia said he found the reasons given by four of his colleagues for "avoiding the key question" troubling.
Two of his colleagues argued, he said, apparently referring to Kennedy and Sotomayor, that when judges decide cases such as the Florida case, the controlling principle could be whether the seizure of property violates due process.
Scalia said he suspects that some justices want to make due process the controlling principle in such matters because that concept is "flabby" and creates "a reservoir of power" for judges in their decision-making.
It was in this vein that he criticized the high court's 2005 ruling in Kelo , in which Scalia dissented. He called that decision "infamous."
Chicago-Kent's Dean Harold J. Krent, who introduced Scalia, said every constitutional law course in America discusses Scalia's theory of constitutional interpretation. Krent said it was hard to think of another high court justice who has been so influential.
Scalia's appearance at the conference was hosted by Chicago-Kent in partnership with the Jack Miller Center, a nonpartisan, nonprofit foundation in Philadelphia "for teaching America's founding principles and history."
Yeah! Like driving while intoxicated.
In Dred Scott I believe slaves were ruled to be property. It makes no sense to extend rights to property.
True. What if a store charged "the rich" more for a loaf of bread because "they can afford it"?
Even with a Flat Tax the rich pay more (in actual dollars), yet they receive the exact same services as those who pay less.
Oh? Why is that? What do you mean by “property”?
Best if you quote Taney and build from his actual wording.
Chief Justice Taney repeatedly refers to slaves as "property" in his decision, never once referring to them as sub-humans. Where did you find your "ruling" that they were?
The idea that a city or county can forcibly take away your land and give it to 7-Eleven because they’ll pay more taxes is insane.
This is true. Which just goes to show that brilliance is less than worthless when employed in a bad cause.
The Scott decision, as pointed out by the dissenters, ignores historical fact and obviously applicable legal principles to reach a predetermined decision.
As has been widely noted, in this it is much like the Roe v Wade decision.
That is very different from just viewing slaves as property. It was an attempt to embed racism into the Constitution itself, which had never mentioned the subject. Or for that matter, slavery itself. The Founders very carefully referred to the institution with euphemisms rather than pollute a document enshrining freedom with the word slave.
Taney was quite correct, under the law at the time, to recognize that slaves were property. This was just a fact.
Where he went off the tracks was in expanding his ruling from the legal status of particular individuals to the legal status of an entire racial group.
He ruled that ALL persons of African descent (whether slave or free) were "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."
While he doesn't use the term "sub-human," which had probably not been invented yet, he certainly got the concept across quite nicely.
It difficult to see how his definition of the status of "Africans" differs from the Nazi definition of the status of Jews or Slavs.
Contract is another form of property, an idea form, where the bounds are established in word or custom. Examples are the title to specified parcel of land, or a contract to supply a hundred blankets at a certain place by a certain day. Or more pertinent form in this case: a contract for labor, like those a Major League Baseball team owner gives to a star player, or any player for that matter.
Contracts are negotiable, contestable. When the terms are vague, unspecified, or problematic a contract is more contestable in court than a battle over real property. With real property, the great presumption goes to the holder of that property.
For example, two students come before a teacher at recess. Each claim an abandoned ball that was found in the play lot. Johnny holds the ball. Billy claims he saw the ball first. Proper ruling: Johnny keeps the ball.
Slavery is, to say properly, under natural law, a form of contract created property. The Slave may be held, sure, uncontested by other claimants to ownership of the right to hold him as slave but what when the slave himself challenges that contract?
To enforce the fugitive slave laws, Taney finds that a African negro slave is a form of REAL property, that is not a man able to bring claims before a court like any other man. And to make that African negro slave such a form of real property Taney recasts the original intent of the framers of the Constitution so that any African negro (or descendant) is banned from sharing in that part of the basic rights of men. Thus, by Taney's reasoning, they are not full men. An African negro and descendants are subhumans, not full humans due all the privileges of natural law. In the Declaration of Independence the Founders affirm "All men are created equal", but Taney's logic removes African negros from that word "men".
In his ruling Taney asks:
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?We see that in that set-up question Taney at first limits who he means, and what he means. In the commentary of the ruling he makes that clearer. He is, at first, talking only of those who were themselves slaves when brought here or descended from those brought here in slavery. And he is talking only of the rights due to citizens.
Yet Taney goes on beyond those barriers:
We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.There's no getting around it. The reasoning Taney applies is that the FOUNDERS considered African negros to be "a subordinate and inferior class of beings", of a race inferior to the "dominant race". Subhumans.
Real property, like some cow or chicken.
A sad, tragic ruling.
Never negate or diminish the necessity of GOOD to triumph over EVIL. If evil is done by the brilliant, good must be done by becoming even more brilliant, or compelling them by other means to use their brilliance, or harvesting the fruits of that evil brilliance for the good somehow.
This is where Lao Tze when wrong when he advised "slaughter the talented", and similar sage advice, imo.
Instead consider a wiser sages advice:
He who gathers crops in summer is a prudent son,
but he who sleeps during harvest is a disgraceful son--Solomon
More like the Constitution did not preclude it.
Taney ruled that freed slaves could be citizens of their state, but the states had no power to make them citizens of the United States. That took a constitutional amendment.
He was discussing slaves, so I assumed that's what he meant (real property).
"There's no getting around it. The reasoning Taney applies is that the FOUNDERS considered African negros to be "a subordinate and inferior class of beings", of a race inferior to the "dominant race".
This was merely a part of his reasoning. He was ruling out the possibility that African negros could have been U.S. citizens from the get-go.
"A sad, tragic ruling."
True, as disgusting as it was, the ruling followed the law and the U.S. Constitution. Even Taney admits in the ruling, "It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution."
When Pilate saw that he could prevail nothing, but that rather a tumult was made, he took water, and washed his hands before the multitude, saying, I am innocent of the blood of this just person: see ye to it.
-- Matthew 27:24
Unfortunately, sometimes force is required to overcome brilliance in the service of evil.
Or, to paraphrase Lincoln, "Let us pray that right makes might."
Nope. The ruling was in error, as can be easily seen by reading the two dissents.
In quite a few of the states at the time of the Constitutional Convention, free blacks were full citizens, complete with voting rights. So when the Preamble refers to "We the people of the United States," it includes those free blacks in those states. Though, to be fair, it did not include slaves or free blacks in the states that did not consider free blacks citizens.
Taney just ignores these facts and proclaims what he thinks the Founders meant, deciding quite without a shred of evidence that when they said, "We the people of the United States," they really meant "We the people of the Unites States, except of course for any people who have African ancestry."
The Founders were not idiots. Had they intended to say any such thing, they certainly could have done so. It is the height of arrogance for Taney, or anyone else, to determine decades after the fact what they really meant to say.
In essence, Taney was proclaiming a "living Constitution," one that needed to "move with the times," and keep up with modern (southern) opinion.
No it did not.
Because for his logic in Dred Scott v Sandford to follow the Law and the U.S. Constitution, Taney had to recast certain predicate as to what law and the US Constitution meant, and also what was the proper role of the Court in adjudicating them. In that last he motive he was joined by many Justices on the Supreme Court in the courts since the second one, the Marshall Court.
When Taney wrote:
The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution.He did so claiming an impossible perfection, or rather more likely a deliberate imperfection, in understanding what "those who framed the Constitution" meant. What was that? That African negros were subhuman, and because of that subhuman status not treated like the white European descendants of those who came here as slaves, for slavery for both blacks and whites in the 1600's was for a term, and not lifetime slavery.
Taney ignored too the predominant and victorious (the ones that inspired most the victory of the Revolution) natural law understandings of the colonial and founding period, that "all men are created equal", that no race was subhuman, no race was inferior to the point of being absent from the rights of the rest of men.
In other words, Taney mocked the Law, by disregarding its foundations.
And he did so with great pride in his work, an overwhelming arrogance that appears in instance as words you quoted:
It is not the province of the court to decide upon the justice or injusticeSuch disclaimer gave full reign to his wanton recasting of the Founder's intents in the Constitution regarding citizenship, and to his mocking of the foundations of natural law, the basis of our America common law.
From time immemorial the courts exist ONLY to provide for justice and to correct of limit injustice. They operate within the framing of laws, and established custom in law, but within that framework they must decide upon the justice or injustice.
When judges and courts become mere idlers, decisionless functionaries stamping out rulings according to pat formulas of law, tyranny leaps in and civil strife, civil war, follows. Judges, like Juries, are to apply facts, law and process to produce a just result.
They intercede between the mechanical crushing forces of any statute or regulation no matter how well crafted, inspired, or intentioned and the actual human reality! That is their duty.
So we're clear, Taney was referring to Africans who were slaves at the time, who were slaves then were freed, or who were descendants of slaves.
In response to your statement, I'm sure there were some free blacks who were citizens of their state complete with voting rights. But they were not citizens of the United States (according to Taney).
At the time of the Constitutional Convention, the phrase "the people" had a specific meaning. It did not mean all persons or even all citizens. It referred to those who were full citizens -- those who could vote, run for any office, and who owned land (rich, white, adult male citizens). This excluded women, children, slaves, foreigners, and visitors.
"The people" were in charge and they had the most to lose. The U.S. Constitution was written for them (unless specified otherwise).
Not at all. He was honoring the intent of the Founders as to who were citizens. He added that it was not within his power to correct injustices and that any correction belonged to the political or lawmaking power.
"They operate within the framing of laws, and established custom in law, but within that framework they must decide upon the justice or injustice."
He was. Bear in mind that it took a constitutional amendment to end slavery, to make slaves citizens of the United States, and to give blacks (and women) the right to vote.
Nowadays, the courts wouldn't bother and would simply decree it. Which is how we end up with Kelo, Roe v Wade, the Kansas City school system, and all the other mistakes made by activist courts "correcting injustices" on their own.
He misstated the intent of the Founders, and their respect for the Natural Laws of Nature's Creator. As those Founders summarized those intents applicable in this case,
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable RightsIt was in his power to set Justice aright for Dred Scott and his family. Taney refused.
The lawmaking power does NOT include the power to take away "unalienable Rights". The government and the courts exist for what purpose? According to the Founders:
... to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governedBut what happens when the government makes laws or enforces the laws in ways that impair or remove the natural rights of men? The Founders spoke to dealing with that circumstance too:
-- whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish itThat is a court, judge or jury, acting in their role as agents of the people do have the right to alter severe injustice. That is especially so in the Supreme Court.
Remember that the courts, judge or jury, and officials whose role is to investigate and possibly bring charges against defendants, also have the role of interpose between sometimes harsh and unyielding interpretation of statute law.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.