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Oh, I forgot; it's amazing what steroids can help you do.
You forget that Barry is no mortal man. He is God, and can suspend time.
Dumbass.
At least, he thinks he's God.
It'll be like a real-life Mr. 3000!
If Barry is immortal, then why has his knee given out. If Bonds can suspend time, then how is he taking so long to recover. If Bonds is God, then why doesn't he turn every pitch thrown into a hanging slider right down the middle and put up a batting line of 1.000/1.000/4.000. To suggest all these thing is absurd.
The ways of God are unfathomable to we mere mortals. If God is omnipotent, why does He allow wars? Why do children starve? Why do tsunamis kill 300,000 people?
Such questions have only one answer: who the hell knows why these things happen?
Strange. That's the same correct response to most koans...
Wait. A fan of a team whose average player age would qualify for AARP is taking potshots?
Barry likes to keep you all waiting. You watch. When he hits 53 home runs in a row to break Henry Aaron's record, you will no longer question Barry.
If you just admit the divinity of the Barry and worship at his feet, your life will be cured of all problems.
Besides, worshipping a baseball player is not as stupid as this.
I always liked the answer in Candide, which answers your question with a question.
If the Sultan sends a new ship to join his navy, what does he care if the rats are happy?
That never stopped Red Sox or Yankee fans, though...
Hey, now, Tom Cruise got recently promoted and can read minds now and do the Jedi Mind Trick and other stuff.
When will Philip Seymour Hoffman play him in the movie directed by John Travolta and Tom Cruise?
As an omniscient, omnipotent being, Barry knows he'll optimize happiness by missing a significant portion of this season allowing fans of the Padres, Dodgers, and DBacks to believe their teams have a shot in the West.
Because Tom Cruise is rich enough to buy and liquify the entire holdings at Fort Knox.
Good point, Gagne_55. When Barry gets back to full fitness, we should cut him, because obviously old players are incapable of contributing. Gosh, I wish we had Werth or Repko in left, they're young and so must be good.
Tell you what, if you think age is so meaningful, I'm sure Sabean will trade you Brian Dallimore and Jesse Foppert for Jeff Kent and Derek Lowe, if you'll pick up the salary difference.
A Giant named Bonds asked of Conte: `Bonds is alone and hurt. Will you give him support?'
Conte asked: `Bonds?'
Bonds responded: `Watch it I'll snap'
Conte said: `You have Zima, the best nutrient in the Bay, and alrady you have finished three year, and still you are saying that they did not even catch the Babe.'
Then Conte slapped him in the head with a trout.
Well, Brazoban got the save today. How is your closer doing?
So don't blame him, blame me.
But now we must tend to our infection.
One can produce, the other can't.
Going to bed, will be back in the morning when this conversation will still be going on.
Looked good last time out. Faced 2 men, struck 'em both out, IIRC.
Answer: there are no good people.
This is very true. But is old and injured really much worse than young and injured? The problem to my mind is the "unable to walk" bit, not the "old" bit.
You won the Pedro bet though.
B: Your massive national television contract, sir.
[/budselig]
Not yet. Either Pedro or Ramirez spends more than one stint on the DL, and that bet is cancelled. I could still come up empty on that one.
Then Conte slapped him in the head with a trout.
Then John Cleese slapped him with a huge fish and Barry fell into the water...
I forgot about the DL stipulation. That's the only way you won't win.
I'm not up to speed on this bet. Which Ramirez, and what are the terms?
One can produce, the other can't.
Ooh, that sounds like a bet.
It's funny, one "slur" hurled at me is that I can identify with Bonds, so I defend him.
Well, in one sense that is true: if I say I am going to do something - I mean it. If I have to bet on me accomplishing a goal, I know whether or not that's a good bet - so if Bonds wants to make it back, I think he will.
I certainly don't see Bonds acting like Mo Vaughn and "say" he plans to come back so he stays on the payroll.
"When it looks bad like you aren't going to make it - that's when you get mean, and I mean, mad dog mean. Cause if you lose your head you neither win nor live."
Words to live by.
But thanks.
color me silly.
Runningbyrd and I bet on whether Pedro Martinez or Horaciao Ramirez would have a lower ERA this season. I've got Pedro; he's get Ramirez.
(Pause to allow Sixth Tool to digest this . . .)
I know, I know. But he suggested it, and even declined a chance to back out. Anyway, the stake is that the winner gets to pick the loser's handle here on BTF. I'm leaning toward, "David Wright is Chipper's Daddy" for RB if I win.
His best chance is, as I said, that the bet is cancelled if either of them spends more than 15 days on the DL.
With all these wagers outstanding, should I be concerned with your counterparty credit rating?
Wow that's a good one. I think i got you beat though. I bet somebody at work that Nomar would hit less than 30 home runs. ($10)
I also have the Dodgers winning more games than the Giants ($5 x 2) and the Red Sox winning more than the Yankees (for a case of local microbrew)
Ask Dan Werr. He can attest to my ability to render prompt payment!
But I haven't given up hope of my chocolate quite yet . . . .
Yeah, he's doing okay. Blew one save the other day, but nobody noticed.
About Barry -- maybe he should prove that he can play in 2005 and 2006 before worrying about 2007. Just a thought.
Come on! I got a bunch of people sqaloring at me that I bet Dan Werr that Adrian Beltre wouldn't have an OPS+ of 109.
He's going to have to post about a million to make that.
Actually, it's in the Business of Baseball Blog. Now that you ask . . . .
Well, I will, but I feel compelled to warn you that internal industry humor is, shall we say, not always apparent to others. Still want me to?
"Do you expect me to talk Hubbard?"
"No Mr. Cruise, I expect you to raise you thetan levels by attending courses."
Eminent Domain has been a long-time bête noir of the libertarian set, and Thomas is, in essence, a libertarian. The fact that it's a local rather than the federal government is beside the point.
Two things. In one respect, his opinion -- while originalist in method -- was definitely not an example of "judicial restraint." His complete unwillingness to defer to the judgment of the elected officials about what was a valid public use was quite activist.
Second, while I think he was at least arguably originalist in Kelo, the Court's right win has been deeply anti-originalist when it comes to the "regulatory takings" doctrine, holding that governments must pay compensation even when they don't even take anything -- just because they regulate the use of the property. Scalia has even admitted this is NOT the original understanding -- but he (and Thomas) follow it anyway.
I have long maintained that if there were a God, he obviously would have tsunamied us - the eastern United States.
It's only a matter of time.
Conservative critics of "activist judges" make certain common criticisms:
1. These "activists" "create" rights which are not enumerated in the Constitution.
2. They impose their particular views on the people, contrary to democracy, because they refuse to adhere to the "original intent". Instead, these nasty "liberals" treat the Constitution as a "living document" which must be interpreted under modern conditions.
3. They use a doctrine called "substantive due process" (see below) to impose on the states limitations which should only apply to the federal government. This, they say, undermines the federal system of government.
Thomas is an outspoken originalist. He certainly agrees with criticisms 1 and 2. I believe he does with 3 also, but Sam can correct me if I'm wrong.
The issue in Kelo was what it means to take private property for a "public use". That term "public use" appears in the 5th Amendment. Here's how Thomas argued in his dissent:
He first admitted, as he had to, that the 5th Amendment did not apply to the states under the original constitution. This is not controversial. In 1833 the SCOTUS expressly held that the Bill of Rights applied only to the federal government, not the states. In the course of acknowledging this, he further admits that some states did not originally have a "public use" requirement at the time the Constitution was adopted. He thus has proved, by his own philosophy, that the "original intent" contained no "public use" requirement.
To get around this problem, he relies on the doctrine of "incorporation". Briefly, this is the doctrine by which the SCOTUS has used the 14th Amendment to apply the provisions of the Bill of Rights to the states.
Without getting into detail, the due process clause of the 14th A says "no person shall be deprived of life, liberty, or property without due process of law." Conservatives usually say that "due process" only refers to procedure. That is, if you get a fair hearing, you can't complain about the substantive result. The SCOTUS has ignored this and said no, due process is also substantive and includes the protections of the Bill of Rights. Thus, by relying on incorporation, Thomas undercut criticism #3, above.
Ironically, however, Thomas misconstrued the decision which applied the 5th A to the states. The court did NOT "incorporate" it. Instead, what it did was say that when the 14th A bars taking property without "due process", that independently imposes restrictions on the states. IOW, the SCOTUS did not "incorporate" an existing right (which might be problematic for Thomas anyway), it created a new one. This is precisely what Thomas and others have repeatedly criticised in the past.
Note, in addition, that by imposing on the states a restriction originally intended only to apply to the federal government, the SCOTUS seems to be undercutting the principles of federalism that conservatives like Thomas claim to support. By relying on the cases in which the Court did this, Thomas is hypocritical again.
So, Thomas has violated his originalist philosophy; undercut his previous complaints about creating new rights; undercut principles of federalism; and committed an embarrassing historical error in describing how the "public use" requirement came to apply to the states.
His next offense creates even greater problems for conservatives. In the course of his opinion, he relies on some language from a case in 1798 called Calder v. Bull. That case contains some language which says, in essence, that there can be rights enforced by the judiciary even if they are not enumerated in the Constitution. Thomas quotes this language with approval, in direct contradiction to criticism #1 above. In particular, this principle would mean that rights like privacy, which conservatives have condemned ever since Roe v. Wade, could be enforced. Thomas just undercut the legal basis for that criticism.
Some of us find the inconsistency and hypocrisy very funny. YMMV.
#######.
I don't know if Thomas believes that or not, but to believe that pretty much undermines most of the foundation for American law.
Well, yes, his opinion was non-originalist to the extent that it relied on 14th Amendment incorporation to apply the "public use" requirement to the states.
But that, of course, is not specific to his 5th Amendment argument. That is a broader inconsistency -- applicable to ANY limit imposed by the Bill or Rights and then applied to the states. It is, certainly, a fair criticism of Thomas from an originalist perspective.
My point, however, was that his interpretation of the substance of the Takings Clause was originalist. Let's say we assume that the 5th Amendment applies to the states. Once we cross that line, it gets us to the substantive question of what limits it imposes. Thomas's argument about what is and is not consistent with the "public use" requirement did reflect an originalist argument.
I'm quite surprised that no one has responded to this yet. I personally don't believe that any of the Bonds used steroids, though admittedly the circumstantial evidence against George Lazenby is quite strong.
I have long maintained that if there were a God, he obviously would have tsunamied us - the eastern United States.
Yeah, but isn't that near where Superman lives?
Maybe you shouldn't be debating where or not God exists as much as whether Superman does.
Best Regards
John
I agree with this. I hadn't seen your post when I submitted mine -- it took me so long to type, yours had registered and I didn't see it.
One nuance, which I am curious to see if you accept. One way to pose the "originalist" issue is "did state law in 1787 contain a 'public use' requirement?". This is, I think, slightly different from the point I made and also different from yours about the meaning of the 5th. If so, then it's another basis for criticising his originalism.
I'm sure there's some blog/board somewhere that has people who are versed and interested in these subjects discussing them
And I'm sure this "Bonds could play in 2007" thread ain't it.
I don't see what this Josey Wales quote has to do with Barry Bonds. Bonds couldn't lose his immense swollen head if he tried, and even if he somehow did, satellite technology would easily pick up the object from 40,000 feet up.
My basic view is that this issue can be solved at the local level by the voters of CN. Most states don't permit this; CA certainly doesn't. Because I see the states as able to solve the problem, and because I don't see any national implications to it, I don't see any need for federal courts to intevene, though I might in a sufficiently outrageous case.
No, most of us are not fine with it. Although this decision does not really change existing law; many states don't allow this sort of thing to happen and perhaps the backlash will make some states change their laws in that direction.
There is a difference between one's personal opinion as to the merit of such a policy and whether such a policy is constitutional.
On a personal level, my wife and I have refuse to patronize stores in an area that was taken by eminent domain for a NASCAR race track and adjoining land taken at the same time was later sold to various commercial entities. We have convinced a few others to join us, but of course it has made no difference.
If you really want a shocking decision, look at Hawaii v. Midkiff (1984 U.S. Supreme Court case) in which the state had a process whereby large landowners could be stripped of their land, with compensation, by a majority vote of the tenants. The state then loaned up to 90% of the cost of the land to the tenants so they could purchase it. This case had unusual facts though, because unlike most of these cases, this was taking from the rich to give to the poor, and the land was split up among many owners instead of the reverse.
"A" principle role, certainly. But the minorities I believe in protecting are permanent ones, i.e., ones based on race, gender, etc.
I guess I don't understand your point. If anyone relevant were a "minority" in Kelo, it would seem to be the wealthy corporation that benefited. Since it "won", I guess you'd say that minority rights were protected by the fact that the Court did NOT intervene. That's not how I'd see the case, but YMMV.
Allegedly, this project will benefit the area as a whole with jobs, economic development, etc etc. So the supposed beneficiaries are the people of the area generally. The undoubted losers are these seven unfortunate families whose homes are being taken from them. Now, who has more say via democratic processes - the people of New London generally, or those seven families?
And as for "permanent" versus "temporary" ones, firstly, I think that distinction is too malleable to bear weight. But more importantly, if the government decides to suddenly seize and redistribute the property of all millionaires, you don't think that's a violation of anyone's rights?
I don't think you've understood my position. Perhaps I've not explained it well. Maybe it will help if I set it out hierarchically:
1. Majority rules in the vast majority of cases.
2. The nature of any majority rule system leaves open the possibility of majority tyranny. I think it's necessary to put limits on majority rule in order to protect it from itself.
3. Those limits are defined by the nature of the problem. There's no need to limit majority rule in cases where one's membership in majority or minority can change at any time. In this case, for example, the people who had their property condemned were in the minority, but the next time property is condemned they are just as likely to be in the majority. Thus, we can expect that the system of majority rule will produce a fair process -- each person knows that the process may afffect them some day.
4. We should be willing to restrict majority rule when it distinguishes among citizens by certain unchangeable characteristics like race or gender. This is very different from #3 -- people in the majority can make those distinctions without worrying, even in theory, that they might become victims of the policy.
5. AFAIK, Kelo did not involve race, gender, etc. Therefore, I don't have a real problem applying the default principle of majority rule.
As others noted above, this doesn't mean I think this is good policy. I might not vote for this system if I lived in CN. But I also don't see any reason for me here in CA to undo what they did.
And as for "permanent" versus "temporary" ones, firstly, I think that distinction is too malleable to bear weight.
It's a shorthand description and I agree it's not perfect. One of the great things about a common law system is that it can identify these problems over time. Wisdom of the ages stuff.
In the case of equal protection, we can on the basis of history and principle identify such methods of distinction as race, gender, color, religion, place of birth, etc. as deserving protection. Personally, I'd add sexual orientation to this list, but that hasn't happened yet and I haven't made any argument depending on that.
if the government decides to suddenly seize and redistribute the property of all millionaires, you don't think that's a violation of anyone's rights?
I think it clear from what I said above that this is not really an equal protection issue for me, so I don't think it's relevant to what I've said. I'll try to answer anyway.
You've given me an incomplete hypothetical. In wartime? I don't think there need be any violation in that case. Now, I do think it probably would be one if at the end of a successful war some effort were not made to pay back the money seized. It would depend on the circumstances. However, the violation would not be equal protection but something else (5th Amendment or due process, perhaps).
As I'm sure you must be aware, democratic processes often attempt to vicimise the "unpopular." The fact that individual members of the majority may be aware that one day they will be in that position doesn't seem to stop them, nor does it guarantee fair process. Nor did the framers of the constitution think in this way. The Bill of Rights long predates the 14th Amendment, and gives certain protections to specific rights - it certainly does not trust that democratic processes will do an adequate job. So this idea that majority rule will necessarily lead to fair processes is counterfactual, and is not based on any constitutional argument.
What we have here is a clear case of "jewellery-store democracy". A jewellery store has more customers than it has owners. Therefore "majority rule" will favor the appropriation of the contents of the store, and handing them over to the customers. In fact, we can clearly see that "majority rule" leads to an unfair process here. The question as to the rights of minorities in a democracy is absolutely not one of equal protection. Rather, it is whether the people disadvantaged by a particular measure have had their interests appropriately weighed by the process. Democracy counts votes, it does not weigh them.
If you believe that the role of the courts is to protect minorities, you should be hopping mad about these seven families, not because Kelo is bad policy, but because their rights are being denied. And, I've no doubt that some novel constitutional principle could be dreamed up in support of the whole notion.
On the other hand, if you believe that the role of the court (and government generally) is to order people around because they don't know any better, then you'll have no problem with this decision. Sure, government isn't ordering these people around quite as you might wish, but that's a policy question. In the same vein, equal protection arguments are just an excuse to impose the social outlook of a particular class on the rest of society (who don't know any better). And then, to top it all off, those who disagree are hypocrites.
I thought we were. Your post 83 appeared to me to relate the discussion back to the Everett thread, where that was the subject. I took your reference to minority rights to be raised in that context.
People are not necessarily mistreated because of discrimination.
I assume you mean that they can be mistreated in ways that do not involve violations of equal protection. I agree. If anything I said suggested that equal protection was the ONLY restriction we should place on majority rule, then I disavow that. Equal protection certainly is necessary, but so are other protections.
Just as obviously, though, we have to be careful how much we limit majority rule. At some point we're no longer discussing democracy.
IMO, democracy is like a market system. The market works very well at times and I favor it as the default assumption. That doesn't mean it's always right, and we clearly need protections when it malfunctions.
The Bill of Rights long predates the 14th Amendment, and gives certain protections to specific rights - it certainly does not trust that democratic processes will do an adequate job. So this idea that majority rule will necessarily lead to fair processes is counterfactual, and is not based on any constitutional argument.
Agreed. Indeed, the Constitution itself is a long series of restrictions on majority rule.
The question as to the rights of minorities in a democracy is absolutely not one of equal protection.
If you mean that sometimes it is and sometimes it is not, then I agree (as per above).
If you believe that the role of the courts is to protect minorities, you should be hopping mad about these seven families, not because Kelo is bad policy, but because their rights are being denied.
I do believe that courts should protect minorities. The issue is, what principle should we apply to this case? It's frankly hard to see.
Unless you challenge the whole notion of eminent domain, then I assume we agree that the state can take property in some cases. This case did not raise the fairness of compensation as an issue, so there's no expropriation going on. That leaves the "public use" point (or a new right, I suppose).
I have a hard time seeing the "public use" issue as involving the protection of minorities in any usual sense -- once we agree that the state can take property, the reason why doesn't appear to me to affect "minority rights" per se. I think the democratic process does create a fair procedure, even if every single result isn't fair (a test I doubt any government could meet).
Then there's the question why federal courts should be the ones to enforce the right, assuming there is one. I'm quite open to the argument that they should; I consider myself "liberal" precisely because I do not oppose federal intervention in state affairs. But what national interest is impacted here?
On the other hand, if you believe that the role of the court (and government generally) is to order people around because they don't know any better, then you'll have no problem with this decision.
Huh? The courts didn't order anyone around here. The very point of criticism is that they refused to intervene. Nor do I see the point of the comment about "not knowing any better." Clearly that criticism would apply with even more force if the courts did intervene against a law passed, presumably, with majority support. At least, that's what the conservatives always tell us.
In the same vein, equal protection arguments are just an excuse to impose the social outlook of a particular class on the rest of society (who don't know any better). And then, to top it all off, those who disagree are hypocrites.
I thought you said you weren't talking about equal protection. But if you want the courts to intervene against majority rule in Kelo, it's pretty hard to justify your opposition to their intervention against majority rule in an equal protection case. Both infringe on the principle of majority rule.
Well, I offer no opinion on this, but earlier you wrote: "There's no need to limit majority rule in cases where one's membership in majority or minority can change at any time. In this case, for example, the people who had their property condemned were in the minority, but the next time property is condemned they are just as likely to be in the majority. Thus, we can expect that the system of majority rule will produce a fair process -- each person knows that the process may afffect them some day."
So are you now saying that if majority/minority membership is fluid, then there is LESS need to limit majority rule and BETTER expectation of a fair process? I am trying to resolve your position in my mind because it appears to be moving.
I do believe that courts should protect minorities. The issue is, what principle should we apply to this case? It's frankly hard to see.
Well, I'm sure you'll
invent something from whole clothlook to the permanent moral standards of society.I have a hard time seeing the "public use" issue as involving the protection of minorities in any usual sense -- once we agree that the state can take property, the reason why doesn't appear to me to affect "minority rights" per se. I think the democratic process does create a fair procedure, even if every single result isn't fair (a test I doubt any government could meet).
The state taking for "public use" it unabashedly a question of harming a minority (the landowners) for the benefit of the rest (or at least some larger group). Does that make it always unfair or illegal? No. But it does mean that it deserves great scrutiny. Why? Because contrary to your bald assertion, there is no reason to think the democratic process creates a fair procedure. In fact, it may be quite the reverse. This is because, as I have said before, democracy does not weigh votes, it counts them.
Example: Newville has 1,000 residents. 999 of them work in a factory. One of them is a farmer. Proposition 21 is proposed, which would seize the farm for "public use" - a development. This development would generate certain tax revenues to be spread equally amongst the resident of Newville. Thus 999 residents will be economically motivated to vote in favor of the measure. 1 resident will be economically motivated to vote against. The measure, therefore, is likely to pass - even if it is economically destructive, and even though it harms the minority disproportionately. Sure, he will be entitled to some compensation but it will be nothing compared to his just deserts. The democratic process will favor just about any property seizure regardless.
Now, in the case of Kelo, we do not see quite the same thing as we are turning houses into an economic development, so it's harder to compare true value. But it is quite clear that the seven families are unwilling to sell at the offered price. Let us also accept for the sake of argument that the development really will benefit New London generally. We therefore have a situation potentially the same as the injustice of Newville. Because democratic processes count but do not weigh, we are unjustified if we assume that the seven families' interests will be sufficiently taken into consideration.
Now, there is longstanding hostility to expropriation. O'Connor's dissent begins with Chase's quote against such measures. By limiting the taking of property to a strict "public use" test, it was clearly the intention of the 5th Amendment to protect private property, not merely from governmental tyranny but from the greed of democratic process. By widening this test, the court reduces minority protections because there is now less restraint on the majority from seizing property. If the reasons for taking are narrowly constrained, then property can only be taken in cases of genuine need. But if not...
In fact, by including economic development by another private party, the court throws away the test entirely. "Nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus... the words 'for public use' do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power." Clearly this ought to alarm you, "liberal" that you are.
Then there's the question why federal courts should be the ones to enforce the right, assuming there is one.
But the right is expressly enumerated in the Bill of Rights, which you believe also applies to the States several, and so you should absolutely believe that this is a matter for federal courts. Unless you're being hypocritical.
Huh? The courts didn't order anyone around here. The very point of criticism is that they refused to intervene.
No, but they supported the politicians of New London in ordering these seven families around.
I thought you said you weren't talking about equal protection. But if you want the courts to intervene against majority rule in Kelo, it's pretty hard to justify your opposition to their intervention against majority rule in an equal protection case. Both infringe on the principle of majority rule.
I'm not in love with "majority rule". I think there are limitations to it. But I don't think the nature of those limitations is "whenever the majority acts in a way that conflicts with bien-pensant liberal dogma."
Neither of these "ifs" were met here. The Stevens/Breyer/Ginsburg/Souter wing of the Supreme Court should be ashamed of itself.
Generally speaking, yes. That generally eliminates the equal protection issues. It does not necessarily eliminate other potential problems, and I probably wasn't as clear on that as I should have been.
The state taking for "public use" it unabashedly a question of harming a minority (the landowners) for the benefit of the rest (or at least some larger group). Does that make it always unfair or illegal? No. But it does mean that it deserves great scrutiny. Why? Because contrary to your bald assertion, there is no reason to think the democratic process creates a fair procedure.
I don't see any reason to believe that the CN law created an unfair rule. When I say that majority rule works well, I mean that the rule itself is facially neutral and could reasonably apply to anyone in the state. This appears to be true in Kelo.
Of course, that still leaves open the potential for unfair use of a neutral rule. The issue is to decide what is unfair about this case. The examples you gave (the farm in Newville and the unwillingness of the plaintiffs in Kelo to sell at the price offered) both implicitly raise the fairness of the consideration. I agree that that is a critical issue, and one worthy of protection by the courts, but it was not in issue in Kelo.
Instead, the unfairness alleged involved taking for "public benefit" rather than for "public use". If the voters in CN don't like this standard, they can (I assume) change it. If a majority likes the standard, then we need some reason to change it to suit the minority.
You rely on a "longstanding hostility to expropriation". To the extent this involves the FMV issue, it does not apply here. I do agree that the wider standard allows fewer limits on takings. But as long as (1) the standard is applied neutrally, and (2) fair compensation is paid, I am not sure what makes this process "unfair".
The government does take property for public benefit every time it takes in tax money. While we don't particularly like this, that does not make such taking "unfair". If it does that, then I'm not sure why it's "unfair" to take other forms of property.
Then there's the question why federal courts should be the ones to enforce the right, assuming there is one
But the right is expressly enumerated in the Bill of Rights, which you believe also applies to the States several, and so you should absolutely believe that this is a matter for federal courts.
Just so we're clear, I said what I did because of the peculiar way this issue was taken by the SCOTUS historically (well, also to take a poke at conservatives). I do believe the federal courts should enforce the provisions of the 5th A. The issue in my case is "how broad is the term 'use'?". If "use" includes "get benefit from", then the courts are applying it. According to Websters, the term "use" includes the following:
5 a : the benefit in law of one or more persons; specifically : the benefit or profit of property established in one other than the legal possessor b : a legal arrangement by which such benefits and profits are so established
That covers it pretty well, I think.
Huh? The courts didn't order anyone around here. The very point of criticism is that they refused to intervene.
No, but they supported the politicians of New London in ordering these seven families around.
Again, I don't get the complaints about the courts. They didn't "support" anyone. They just refused to intervene. If there's criticism to be made here, it's of the voters of CN.
I agree with this. If the fairness of the compensation had been in issue, the result might very well have been different.
If this were true, then are you doing more than arguing that anyone in the state could be treated unfairly? If so, that makes the rule worse, not better.
The examples you gave (the farm in Newville and the unwillingness of the plaintiffs in Kelo to sell at the price offered) both implicitly raise the fairness of the consideration.
No, that was not the point of the examples at all. It should be assumed that whenever property is taken for "public use" that consideration is unsatisfactory. If a mutually satisfactory deal could be reached then there would be no question of seizing the property. This is a given. This is why government seizure of property is at best a necessary evil.
Rather, the fundamental point I was making was conveniently highlighted in bold text. As you appear to have missed it: The democratic process will favor just about any property seizure regardless. So, if a democratic process tends to favor property seizure, but seizure is at best a necessary evil, we might think that there would be some kind of constitutional protection against these seizures, limiting democracy in this way. And lo and behold there is.
I do agree that the wider standard allows fewer limits on takings. But as long as (1) the standard is applied neutrally, and (2) fair compensation is paid, I am not sure what makes this process "unfair".
Because, as above this process will favor any property seizure.
The issue in my case is "how broad is the term 'use'?". If "use" includes "get benefit from", then the courts are applying it.
But that would render the provision meaningless. Is there any potential property seizure that would not be allowed?
In summary, you seem to favor the abolition of private property, except as held at the whim of government. Property can be seized not merely because it is needed in emergency, or because it stands in the way of some much-needed public utility, such as a road or bridge - rather, if I am making inefficient use of my property, it can be taken from me. (And the efficiency of such use is to be decided by the confiscators). This is fair as long as it is applied to everyone. The federal courts should strain the language of the constitution in order to turn a blind eye. Homosexual marriage, however, is a fundamental right.
Perhaps my mistake was that I viewed Orwell as a satirist.
That said, this decision sucks but it could have sucked worse had it gone the other way.
I don't favor the abolition of private property. I AM willing to leave property relations to the democratic process (in general, subject to some restrictions I've noted). I believe voters understand property interests and protect them out of their own self-interest. It's not just that I think democracy provides sufficient protection; it's also that I do NOT consider property something which should be elevated above the needs of people.
That said, this decision sucks but it could have sucked worse had it gone the other way.
Actually, RETARDO, I care deeply about other (non-property) rights. I am in a continuing state of outrage, for example, about Guantanamo Bay, on which I agree with Amnesty's recent statement. I don't regard myself as hysterical over this decision, nor do I need the support of Orwell. But I do regard Mefisto (and the left generally) as comically hypocritical. His post in 98, for example, is utterly beneath contempt.
I agree with you on most of the points you have made, but I'm not sure if they are responsive to 2Alous general point.
The current decision is supportable under the law. The reason is that when faced with such prior decisions, the court had to carve out fairly unique exceptions. We were willing to let an urban renewal project be an eminent domain exercise. We even were willing to let lessors become owners in land. In both cases, there was a polity underriding this thought. We have a history of creating defeasement of the landed gentry; we have things like adverse possession. We do desire to put property into the hands of those that will use it, but we have always set up bounds to temper this polity with a recognition of rights.
I would imagine that if we had a big discussion on Hawaii when it was issued, Nieporent would be here to tell us about a slippery slope of denying property ownership. I would have probably said, "Bah! This was a good result and I trust xyz to differentiate some future situation." Then I would have insulted him.
Then he would have insulted me and said, "What about if some development company wanted to take your house to build a hotel." I would have insulted him back, said I wouldn't support it, and that its unlikely to happen.
And I would have been wrong.
As a matter of polity, I believe we have crossed a line that should not have been crossed. The development project will benefit the community more than the private land owners holding their homes. There is little doubt on that point.
But it is an intrustion on the rights of those landowners, and its an intrusion that I can say we do not want. It does pave the way for a municipality to take land for a better economic use. Not just for a public need, public utility of great import, but a better economic use.
It does mean that my rights to own property are limited by the state not finding better uses for the land. And I don't think that is a right that we want invaded by mere popular vote.
As for legal analysis, I think the SC opinion shows that we can use the body of our law to support or deny that outcome. So in the end, the question is really about how much of a Constitutional right do we have as a landowner.
But it is an intrustion on the rights of those landowners, and its an intrusion that I can say we do not want. It does pave the way for a municipality to take land for a better economic use. Not just for a public need, public utility of great import, but a better economic use.
It does mean that my rights to own property are limited by the state not finding better uses for the land. And I don't think that is a right that we want invaded by mere popular vote.
A sincere "well, said," BL.
As would I, and we'd both be right. He proceeds fro bad faith and a poisoned value system. I can't emphasis it enough: he thinks that the state should *never* take away anyone's (or, more sinisterly, anything's) property. #### that.
The state must have power of eminent domain. Is it paying these people a market price for the land? IF so, I don't see the problem in so far as that.
I'm touched by so many conservatives suddenly teary at the thought of an *individual* losing his home; and that he's losing his home at the ultimate behest of a corporation must present so many ironies that the only possible response is apoplexy, which I have enjoyed reading, especially of the libertarian variety.
OTOH, I *do* think it should be exceedingly difficult for the state to appropriate homes. Yes, there is a hierarchy of property, not just in the nature of it itself, but also because of the ownership of which.
The problem here, which conservatives/libertarians are quickt to blame, as is their wont, on democracy, has actually more to do with the electoral system they themselves have poisoned and continue to defend the poisoning of.
If one is outraged that the Rich can manipulate elected politicians into seizing desirable property, it is not democracy's fault nor is it the fault of the righteous state power of eminent domain: rather, it is the fault of the Rich and the politicians. Destroy this symbiosis, by which I mean, make them hostile as entities, and our problem will be lessened. Why *do* politicians elected by the public do favors for the Rich? Because they are bribed, legally, a practice that every awful libertarian and conservative will defend with his dying breath. Well, fukkos, this is what *you get*! Ideas do have consequences.
Is it the fault of the electorate that they vote in politicians who abuse the power of eminent domain? Uh, no, because they have no choice. Candidates of both parties trip over each other to suck the collective penis of the wealthy interests. This is what you get when you perpetuate that system.
Also, and it's an old point, but I'll make it again anyway, only humans should be entitled to the 5th Amendment's (or any constitutional) protection. If it were so (as it was meant to be, I might add), I would support the conservative dissents in this regard. But as it is, #### 'em. They dont care about these people's homes, they only worry that this establishes a clearer precedent by which the state can seize the sacred sacred property of business enterprises. In the current context, it just means that the biggest business that can do the biggest legal bribery can, through the state, swallow the smaller businesses' and individuals' property. Well, again, that's what you get. The nasty symbiosis enevitably tends to bigness, and conservatives and nutjob libertarians have only themselves to blame.
One more thing, since there is no longer a 4th Amendment in the age of Gonzales why shouldn't the 5th be too flushed down the toilet? What's good for the goose is good for the gander. Some of us told you there was authoritarianism ascendant, but you didn't listen, you just wanted to get rich, get a tax cut and kill sum a-rahbs. Sorry, but you helped change the zeitgeist; this is your just dessert.
It does mean that my rights to own property are limited by the state not finding better uses for the land. And I don't think that is a right that we want invaded by mere popular vote.
is fairly widely shared. For that reason, I'm confident the democratic system can solve this problem and we don't need the courts to intervene in order to support bien-pensant conservatism. (Imagine a few more puerile insults here.)
In this sense, Retardo is right in 97: the result would have been far worse if it had gone the other way. Hard cases make bad law, and all that.
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