<p>Well speaking as a moderate/liberal, I have to say . . . oh never mind. Even to me, the ruling was very disappointing. The biggest problem is that the court, even though ruling that this was a “public use”, STILL didn’t give enough of a framework of exactly how to define public use. It’s almost the same “I know it when I see it” test that the SC applied to pornography vs. obscenity several years ago. And the problem with a test like that is that it makes for more court proceedings and, as O’Connor pointed out, that will only benefit the people who can most afford to play the game. So while it’s a “big government” ruling on its face, it’s actually a “big business” ruling in practice. I’m very disappointed. </p>
<p>ariesathena, what have your profs said about this term in general? I find it very odd, with a number of rulings and groups that were unusual. Take this case for example – O’Connor is very protective of the “swing vote” role that she has carved for herself. To see her in the minority is surprising – she wasn’t able to get Kennedy on her side? The medical marijuana ruling, the death penalty cases, the other property rights cases – it’s just been a strange session, and I think it once again shows how difficult it is to predict how a particular person will act once they get on the SC (Souter, Kennedy, Breyer, and to show some political balance from the old days when democrats appointed justices who became very conservative, Byron White, Hugo Black, Felix Frankfurter, etc.)</p>
<p>“Yes, the “liberals” believe that private property can be seized and given to Big Business.”</p>
<p>That’s the whole point - in the economic scale of things, the differences between the “neo-liberals” and the conservatives are very, very small.</p>
<p>The problem is that the liberals generally do not believe very strongly in private property, especiallly if someone else (their voters) “needs” it more than its owner seems to. </p>
<p>Lets not try to muddle the clear differences here. The smartest thing the democrats could do for damage control would be to propose a constitutional ammendment which would re-clarify the takings issue. I’ll bet if you listen to comments today, the democratic party will try to distance themselves from this decision faster than a speeding bullet. Its something that everyone in the country can understand clearly, and it is going to electorally clobber anyone who supports it, regardless of party.</p>
<p>No vote tactics, please, the republicans have done that too. They complain about it when its on the other side. Jeesh.</p>
<p>On March 9, 2000, Frist participated in a filibuster of Richard Paez, President Clinton’s nominee to the Ninth Circuit.</p>
<p>n fact, Paez was only one of at least six filibusters Republicans attempted during the Clinton years. Senator Orrin Hatch and others argue that these filibusters don’t count because they ultimately weren’t successful in blocking the nominees.</p>
<p>uring the Clinton years, they used a slew of questionable legislative ploys to smother judicial nominations quietly while in committee. One favorite tactic: In 1994 Senator Hatch added language to the Senate rules for confirming nominees. His objective: to allow a single senator to easily–and secretly–block nominations from leaving committee. It worked. Judge Marsha Berzon’s nomination was secretly stymied for more than two years. (Senator Bob Smith finally admitted his role.)</p>
<p>“The problem is that the liberals generally do not believe very strongly in private property, especiallly if someone else (their voters) “needs” it more than its owner seems to.”</p>
<p>The core of this issue is not private property or “property rights” per se, but economic growth. (That was the heart of Stevens and Kennedy - both Republicans - on the issue.) Both Dems and Reps believe in the religion of growth as the cure-all for our social ills. The conservatives tend to believe that if private owners are allowed to keep most or all of their gains (ill-gotten or not), the gains become the engine of growth that allows the society to “grow out of” all social and economic ills. The neo-liberals believe a slightly larger percentage of these gains should be plowed back into the public sector to help mediate social and economic ills, and also to provide the prepared workforce and environmental conditions which make further growth possible. Two religions with very, very minor differences between them.</p>
<p>Reps were once the most ardent backers of public education, because it created a docile, malleable workforce that would not rebel, and would find all their social rootedness in meaning in the production and consumption of material goods. Now that both production and, to some extent, consumption can be had elsewhere, that backing has become strained, and education is now seen as just another potential profit center to be privatized. Dems continue to back it generally speaking (though almost never with money), because they think (strangely) that will allow more folks to reach for the brass ring. </p>
<p>I don’t see anything of great interest coming of this decision, and I think it’s actually a relatively minor one.</p>
<p>“ariesathena, what have your profs said about this term in general?”</p>
<p>Not too much, actually. We did discuss this case in Property, and the feeling (among all political camps) is that New London doesn’t have the right to take the property, even with just compensation. </p>
<p>Mini & others - I do think this highlights the libertarian split from the parties, who are very much on the side of O’Connor, Thomas, & Scalia. To me, this is a government, not a business, ruling - what is the extent to which government can take your property? The libertarians side with the strict constructionalists, who really believe in a very limited set of circumstances for a taking (though for different reasons - the libertarians because gov’t shouldn’t be able to bulldoze your house, and the s.c.'s because of the precedent for reading “public use” as being an important requirement for a Fifth Amendment taking).</p>
<p>My two cents. Very saddened by this decision. For better or for worse, it provides an excellent example of the benefits of stare decisis & constructionalism.</p>
<p>I am alternating between fury and despair with this one. Full disclosure–this is quite likely to affect me directly.</p>
<p>IMO this is not an issue of “liberal” or “conservative” or “Dem.” or “Rep.” and that is why people get so confounded by this. The true divide here is “originalist” vs. “living constitution” advocates. There are only 3 Supremes who are consistently originalist in their approach to the constitution. It is no wonder that our individual and states’ rights have been almost obliterated.</p>
<p>This ruling is not a ruling in favor of “corporations”–it’s a ruling in favor of tyranny and the rule of tyrants instead of the rule of law. It is exceedingly dangerous. “With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” James Madison</p>
<p>I live in a small neighborhood that is turning over due to retirements. The homes are being alternately torn down and replaced, or tripled in size. It is only a matter of time until my 1950’s split level will be considered to be a blighted property because it doesn’t meet the standards of the 5000 sf house with 11 car garage that went up just down the street a couple of years ago. The standards being, of course, that it doesn’t generate as much tax revenue.</p>
<p>We need more originalists on the Supreme Court, not more liberals, conservatives, or moderates. And dear CGM–give it up. Of course the Republican Senate did block Clinton nominees, that’s not the issue. They could because they were at the time and are now the MAJORITY. I don’t understand why people don’t get this. They won the elections, they are in the majority, that’s the point.</p>
<p>The issue is that the Reps are now complaining when the Dems are doing it. And not just complaining,. Trying to change the very rules. And there were certain safeguards put in place, ie, the 60 vote rule to stop just the tyranny you are griping about. I KNOW the Reps did it, and now the Dems are. But apparently the Dems shouldn’t because it is wrong. It wasn’t wrong then and its not wrong now. </p>
<p>The issue is that the Reps are now complaining when the Dems are doing it.</p>
<p>The current Governor and former Governor of Connecticut, who defended the action in court, are both Republicans.</p>
<p>So…in Atlantic City, when the hotels wanted to expand back in the early 80s, it was rather simple - they didn’t use “eminent domain” - they simply increased the property taxes (under “best use” provisions), and provided that the builders could use all the available air space over and around the remaining homes, making living there untenable.</p>
<p>Umm, they never filibustered anyone. You see they had this thing called a majority at the time. Now, in a democracy that’s an important distinction.</p>
<p>…but I see where you’re going - a majority imposing its will by voting is <em>almost</em> the same thing as a minority imposing its will through abusing the parliamentary rules of the Senate. Or not…</p>
<p>It’s just another example of why the constitution should say what it means and mean what it says. Justice Scalia came and spoke on campus last year and it really struck me as true when he talked about how the idea of a “living constitution” can be used to undermine rights as easily as it can be to grant more.</p>
<p>It’s also interesting how many of the people moaning about judicial activism here (because they didn’t like the ruling) are the same people who are adament that the equal protection clause doesn’t apply to affirmative action (nevermind what the words say!), or that guarantees to gay marriage, etc, etc can be found in the constitution. Do you guys not understand that those are much larger stretches than the eminent domain decision?</p>
<p>But I don’t think the decision was a stretch at all - just an extension (and not a particularly large one) of “business as usual”, in a long tradition that stretches back to Alexander Hamilton.</p>
<p>Ahem. Let’s all calm down, please? I’ve actually successfully defended a private property owner against this exact phenomenon - a local city condemned my client’s commercial property so they could transfer it to a large corporation who wanted to incorporate it into a larger development. Lots of skullduggery involved (the big corp. had the city by the shorts over a different lawsuit the corp. had won against the city, and used that judgment as leverage to get the city to do what it wanted) etc. I beat the city and corp. at trial (pretty rare - I’m bragging now.)
So I guess I should be the first to pick up a torch and pitchfork. But I’m not. Look - government has a right to take private property “for public use, with just compensation” - it says so, right in the Constitution. The only question is, what are the limits of “public use”? Highway - yes. Airport - yes. City Hall? Yes. Hospital? Yep. Private Railroad - yes. Baseball Park? Looks like yes. You want to clear a slum and make it available for better quality housing or commerical uses? Been doing it for years. This isn’t an issue of basic principles but of degrees, and just where you draw the line of what is “public use.”</p>
<p>Calling the decision “activist” is baloney. The court deferred to the judgment of the elected local officials that the use to which the property was to be put following the condemnation was in fact for the benefit of the general public. There are cases where that’s not true (I won one) but under the facts of this case it would have been activism by the court to overrule that decision and state that only those uses the judges personally considered to be a “public use” qualify for the authorization specifically granted by the Constitution. There are times when courts have to take that stand. I don’t see this as one of them, whether I agree with the city or not.</p>
<p>But basically, as O’Connor eloquently stated, there is no line now. There’s a suit now in NJ, where a town wants to eliminate two trailer parks to put up luxury condos. Following this ruling, these people just lost their homes so that richer people could live there. Every quote from the mayor of the town reeked of class disgust for the poorer folk. So anyone who lives in an area where someone wants to put up a more expensive home (which would generate higher property taxes) is at rich. There is no line at all.</p>
<p>But there wasn’t a line before, even in New Jersey, as the hotel cases in Atlantic City more than two decades ago make clear.</p>
<p>It would have been “activist” if the Supreme Court were now to decide what is “public use” and what is not. This would make Scalia and Co. the “activist” judges (who would also move toward the elimination of state’s rights), not the “originalists”.</p>
<p>But, again, much ado about very little, really.</p>
<p>True about the casinos. But did that ever go to the SC?</p>
<p>And it is definitely very weird that the socalled liberals are upholding “local rights”. That’s the same side the segregationists were on, wasn’t it?</p>
<p>But if your home had been on the path of a potential railroad, or a road, or a government building, an airport, a baseball park, an industrial park, or a hotel, all of which could have been managed by, or a source of profit for, a private corporation, you’d lose your home anyway. So it really ISN’T about “your home”, but rather more narrowly about, not what, but who is to decide what constitutes “public use”? The activist judges - Scalia & co. - think that the Supreme Court should make such decisions; the conservative ones, in the tradition of the founding fathers prior to Marbury, think it should be left up to the state and local jurisdictions.</p>
<p>I most often hear the term “activist” used by conservatives to describe judges or decisions that they perceive as too liberal, suggesting an attempt to irresponsibly push an ideology well out of the mainstream of American thought. The term has always struck me as empty rhetoric. Are there any thoughtful conservatives out there willing to lend credibility to the term by declaring as “activist” any current judges or decisions that they perceive as being too extreme in their conservative thinking, again suggesting an attempt to use the courts to push an ideology? Certainly there are ideologues on both sides of the fence.</p>
<p>I don’t think judges should be pushing ideology, nor should they be concerning themselves with whatever “the mainstream of American thought” is thought to be. That’s the role of politicians. Judges should be applying our laws, as they are written.</p>
<p>Well put–and I agree. I just wonder sometimes whom conservatives would identify as an activist judge on the right-wing side of things. If they can’t name anybody, then there are either no right wing activist judges at all (somethng that seems logically impossible to me), or the term is empty, at worst a cynical bit of self-serving rhetoric. And here’s the thing: I’m neither liberal nor conservative, just somebody looking for a little logic and honesty in our civic discourse. I happen to believe that 99.9% of judges, whether conservative or liberal, do not use the bench to consciously push ideology, although their personal beliefs will certainly color their interpretations of the law.</p>