The Great Government Land Grab: Origins and Definitions

On June 22, 2005, the Supreme Court voted five to four in a case that will expand the power of governments to invoke eminent domain to make way for commercial developments. I believe that this is a dangerous expansion of one of the most sweeping powers held by the state. This is not a simple issue, and I believe that this needs a real in-depth look to probe the contours of this new development and also the ideas of public good, property ownership and the power of the state over both. So, to that end, I will endeavor to explore this topic in three parts. First, definitions and the history of eminent domain in the United States will be explored. Second, the political philosophy of property ownership and the power of the state to seize private property will be discussed. Lastly, this recent decision by the Supreme Court in Kelo v. New London will be probed in depth and some conclusions will be drawn.

Eminent domain can be defined, at least for the United States, as the power of the state to appropriate private property for its own use without the consent of the owner. This power is usually used when it is necessary to acquire real property to complete a public project such as a road and the owner of the property is unwilling to sell it. When this power is invoked, the owner is given "just compensation" for the property, but it is taken from them all the same. As one may imagine, this power of the state over private property is vast and troublesome.

The idea of eminent domain is embedded in the legal systems of most of the English speaking world, where the standard for the law is that of English common law, which itself has its origins in a mixture of Germanic tribal law, Anglo-Saxon legal tradition and some Roman jurisprudence. The United States and its legal system is based, in large part, on English common law and it was this legal tradition that was in the minds and education of the authors of the U.S. Constitution.

The power of eminent domain is laid out in the Fifth Amendment to the U.S. Constitution which, as part of the Bill of Rights, was passed by the U.S. Congress and ratified by the states on December 15, 1791. The Fifth Amendment, most famously known for the right of the accused in trials to not testify against themselves, states:

• No person shall be held to answer for a capital, or otherwise infamous crime,unless on a presentment or indictment of a Grand Jury, except in cases arisingin the land or naval forces, or in the Militia, when in actual service in timeof War or public danger; nor shall any person be subject for the same offenseto be twice put in jeopardy of life or limb; nor shall be compelled in anycriminal case to be a witness against himself, nor be deprived of life,liberty, or property, without due process of law; nor shall private property betaken for public use, without just compensation.

It is the last lines of the Fifth Amendment that establish the power of eminent domain. What immediately springs to mind here is how to define "public use" and "just compensation." Just compensation has come to mean that the owner must be paid prevailing market prices for the seized property. What is even more troublesome is how to justify that the taken property will be put to "public use."

In The Federalist Papers, the series of articles published by Alexander Hamilton, James Madison and John Jay to convince the people of New York to ratify the Constitution in 1787-1788, the public good in relation to property is discussed. In Federalist Number Twelve (written by Hamilton in 1787), the idea that the government exists to benefit the people and encourage industry is put forth as the government's responsibility in fostering the public good. While Hamilton does not suggest any sort of state industry, he does argue that it is the responsibility of government to collect taxes to build and improve such things as roads, ports, bridges and other infrastructure that will benefit all the people. He clearly was not advocating that the government have the right to seize land to sell to private interests, nor does he argue explicitly that economic enterprises necessarily form part of the "public good." It was clear from the start, therefore, that this power needed to be limited to a narrow definition so that it would not become abused by government. Well, government is phenomenally good at abusing power and redefining terms to change the rules. That is the story of the years between the writing of the Constitution (1787-1789) and the present.

The case law that is cited most often in eminent domain cases is that of Berman v. Parker, 348 U.S. 26 (1954). Decided by the U.S. Supreme Court, this landmark case redefined the terms in the Fifth Amendment, namely "nor shall private property be taken for public use, without just compensation." The case set the precedent that private property could be taken for a public purpose with just compensation. This decision opened the door for the notion that private property that is in need of improvement or that is in poor repair can be condemned (taken by eminent domain) and this serves the public purpose of economic development.

The last eminent domain case to come before the Supreme Court before Kelo v. New London was Hawaii Housing Authority v. Midkiff 467 U.S. 229 (1984). In this case, the definition arrived at in Berman v. Parker was expanded beyond the right of governments to take property that is blighted. It affirmed the right of government under eminent domain to take land for "public benefit," not strictly for use by the public. This decision, which was 8-1 with Sandra Day O'Connor writing the majority opinion and Thurgood Marshall abstaining, set the stage for the development of eminent domain decisions and actions since. As can be seen, these court decisions have greatly widened the ability of the government to take private property for other private uses without the consent of the owner and also without demonstrating the "public use" to which the land ought to go. This has strayed considerably from original understanding of the "takings" portion of the Fifth Amendment.

It is clear, at least to me, that the government redefined the clause to undertake a power and decisions that they are not in the place to make, namely the disposition of private property. Even worse, the government gets into the notion that economic development serves the public good. This is not the place of any government, to redistribute private property to foster financial gain for the now new owners of this property. The economy and private property should and must be the domain of private citizens, free from the heavy-handed incursion of the government. The government needs to stay out of private property and focus on the actual powers given it in the Constitution. Is this realistic? Maybe not, but it does bear mentioning that the government is too powerful, changes the rules to benefit its interests and in many cases ignores the Constitution wholesale. It is the law of the land and applies to everyone, including them. This power places the force of the state over the rights of the individual, a shameful abrogation of the natural rights that government is supposed to be formed to protect.

Tomorrow, we will examine the nature of these rights and the notion that these are rights that no government has the right to deny its citizens.

Yeah, Yeah, I Know...

Yes, I realize that I have not posted in a week, but I think I have two good reasons and one not-so-good reason.

The first good reason - I was, until yesterday, in the midst of defending my master's thesis so that I can graduate from De Paul University. A three year process is finally at an end and I have taken another step in my education. Actually, it represents a "comeback" of sorts. When I graduated from undergrad in 1999, I was seduced into the corporate world with a good paycheck and dreams of capitalist glory. I worked as a floor clerk and trader at one of the exchanges here in Chicago from May of 1999 until my unexpected release in November of 2001. I then proceeded to descend into unemployment from November of 2001 until August of 2002. I turned into, for a time, the stereotypical unemployed guy: in a bathrobe, drinking beer at 9:00 in the morning, waiting for The Price is Right to come on and wondering "why me?" It was in March of 2002 that I realized that a change was necessary. I started to look into graduate programs in the Chicago area, and discovered a wonderful masters in history program at De Paul. I applied and was accepted for admission for the 2002-2003 academic year. I also then got a job at a Value City Department Store. The pay sucked, but I have never worked with better people in my life and retail is always an adventure. I worked and went to school and started to fight my way back from despair. I left Value City in August of 2003 upon my selection as Graduate Assistant in the De Paul History Department. My credentials rebuilt and my path forward clearer, I applied for doctoral programs in the fall of 2004. I applied to several schools that I will only describe in vague terms: an Ivy League school, two large well-know Catholic universities and a Big Ten school. I was only accepted by the Big Ten school, but that was good because it was my "first choice" school. That school is the University of Wisconsin-Madison, where I will do my doctoral degree and I couldn't be happier. So, I figure that this culmination was a good reason not to post.

The second good reason - I am working up a few big pieces for y'all. One involves eminent domain, one dosen't and one has nothing to do with the news (even I need a break). I figured that in the wake of this paucity of posting, I few really meaty pieces were in order. So, I think that is a valid reason.

The not-so-good reason - In the wake of my successful defense yesterday, I bought some new music, ate a gyro platter and set about a half-gallon of bourbon. I woke up at quarter to four this afternoon. Not a good reason, but certainly part of the problem.

So, as the state motto of Wisconsin instructs us, "Forward!"

Trouble Ahead, Trouble Behind

I was reflecting on a conversation that I had with a dear friend (and reader of this blog) concerning affairs around the globe. We came to the conclusion that one could literally throw darts at the map and find some sort of trouble and strife that we never seem to hear about except in passing. It seems that these local conflicts and problems would get SOME play, given the fact that we have media outlets going full steam around the clock...one would figure that these items from around the globe would eventually make it to the schedule of some U.S. news operation.

This is never the case. The news media today is concerned with precious little that happens outside the U.S., except in reflection of U.S. policy with all its warts never in view. How about news on places in the world where we haven't made a complete muck-up of the place? Is there no validity to the notion that Americans would want to hear what is going on elsewhere? I shudder at the possible answers to these questions, but I figured that I would delve into one of these situations, give some background and analysis and come back to how I got interested in it and how maybe the short attention span of the U.S. media can have some redeeming value. A daunting challenge, but one that I think will lead to greater illumination.

The situation that caught my attention recently is that of the Kingdom of Nepal. First, some background information.

Read the background notes from the State Department.
Also, this is the country study from the Library of Congress.

The situation, briefly, seems to have deteroitated rapidly in the last ten years. Since 1996, Nepal has been confronted with what has been deemed a "Maoist insurgency" who has been stalking the countryside and terrorizing the people and the government. The government, for its part, has become more and more repressive in dealing with the insurgency. There had been progress towards democracy since the 1950's, but since 1990, with a new constitution, the situation was looking up. Recently, however, there have been problems such as a massacre of royals by the crown prince, leaving the remanents of the royal family to rule. The progress toward democracy resumed in 2002, but King Guyanendra was "displeased" with the progress made by the government and in February of this year dissolved the parliament and took over direct rule.

One of the most disturbing developments that came along with the direct rule has to be the repression of the press. Although the "state of emergency" was lifted in April, there have been no moves to restore the free press.

The people of Nepal, just as with any people who live under such conditions, are apalled by the violence and want the government to restore rights and peace to their country. Check out this blog for more information on the "situation on the ground" in Nepal. Also, read the account of Nepalese journalists protesting to regain their rights.

The freedom of the press is crucial in every society, especially one in turmoil such as Nepal; it seems, however, that this is among the first of the rights of the people to be quashed and repressed whenever times get trying. When Maoist rebels and government death squads are stalking each other across the rugged expanses of Nepal, wouldn't some information be preferable to living in fear? This lack of freedom coupled with the fact that the Nepalese people are among the poorest and most disadvantaged in the world (40% live under the poverty line). The people of Nepal deserve information on the dangerous situation in their country.

On paper, Nepal is still a constitutional monarchy but this is a sham since direct rule was declared. Nepal is also a member of the UN and a signatory of the Universal Declaration of Human Rights which guarantees such rights to all people. Of course, this document is violated by repressive regimes all over the globe whose representatives sit in the General Assembly; Nepal is but one recent example of the slide into dictatorship and unjust rule. As I alluded to in the beginning, examples sadly abound.

I was apprised of this situation by a short news clip on the CBS radio news that presented what I thought was a quite evocative image. They reported on a man in Nepal who refuses to follow the national press repression. Every evening, apparently, this gentleman climbs on his roof and reads the news over a loudspeaker to all within earshot. This image of a lone man defying a repressive government's destruction of rights strikes a deep chord at the core of my belief system. Perhaps it does the same for you. In any event, this story, an unattributed fifteen second byte on the radio news for CBS affiliates led me to look deeper into the world that this one Nepalese man inhabits.

It is, perhaps, these almost "throw-away" items of the behemoth that is the news business in America that can end up mattering the most. It is up to all of us to be aware of these situations around the world, where strife is the order of the day and rights are threatened. It is incumbent upon all of us with access to more press outlets to raise awareness of these situations in which people are being oppressed and their rights trampled upon. With the strength of our words and deeds we can promote justice and fairness the world over. We have been given much with freedom of the press, speech and other such guarantees against government encroachment. Much should be expected of us. Our government may engage in foreign policy, state building and regime change in misguided ways for strange motives. It is up to us, however, to oppose these moves when they are inappropriate and raise the clarion call to bring attention to rights wherever they are threatened.

Freedom of the press and speech are not American inventions nor should they be a Western monopoly. They can and must spread and we must be the ones to do it.

What Are Big Bird's Politics?

This is another one of those "issues that won't die." What is the proper position of PBS and are they biased to the "left?" Personally, I have always watched and enjoyed PBS. Here in Chicago, we have a great PBS station in WTTW and the lesser known but also informative WYCC. They simply show things that you cannot see anywhere else. WTTW is also pretty good at producing local interest programming that tackles issues important to people in the region.

PBS has been under attack ever since Richard Nixon attacked it 35 years ago and it has been a constant bete noir to the "right" ever since.

This article by the always interesting Molly Ivins gets to the heart of the matter.

PBS cannot become the media mouthpiece of the government. That is the last thing that we need. And no, most of the programming is not politically charged. Have your political sensibilities ever been insulted, changed or destroyed by Antiques Roadshow, This Old House, Masterpiece Theater or Barney? The news/current events programming, as Ivins points out, are painfully well-balanced and now that Bill Moyers is gone, there is little for rightists to complain about.

Don't like PBS? Just change the channel and watch the other shit that is usually smeared over the television landscape. Maybe Newton Minow had a point in 1961 when he called television a "vast wasteland."

Better yet, read a book while you still can.

Skimming The Surface

Some quick items, some important, some merely disgusting...

• We must never forget that the price of freedom is eternal vigilance, especially where the government is concerned.
• While were at it, this sort of thing is always off-putting.
• Does anyone care about this anymore?
• Always a cheery way to start out the week. Thanks a million, Zuckerman.
• This is disgusting, but in a non-threatening way.
• I'm gonna pretend that I never read this.

We are slowly being crushed under the weight of the 24-hour news cycle. I hope we can wade through it all as the line between news and entertainment are further blurred.

Republicans, Democrats, Idiots All

Well, in the wake of Dick Durbin's comments comparing U.S. soldiers at Gitmo to Nazis or Soviet gulag guards, the Republicans have continued the inappropriate historical metaphor. Republican Representative J.D. Hayworth of Arizona said these questionable things on Imus in the Morning on Thursday:

Congressman J.D. Hayworth: "I'll tell you what though, we have a situation where things are getting in 'Alice in Wonderland like'. You're curiouser and curiouser reading the comments of Dick Durbin. I don't know what Senator Durbin was doing, maybe he was...."

Imus: "What was he saying again?"

Congressman J.D. Hayworth: "Here is the quote about treatment of the unlawful combatants at Gitmo. Quote, 'You would most certainly believe that this had happened by Nazis, Soviets and their gulags, or some mad regime, Pol Pot and others, that had no concern for human beings,' closed quote. So, Dick Durbin, Senator of Illinois, is comparing our troops who have their lives on the line with the criminals at Gitmo, the unlawful combatants, the enemies of this country who did not wear a uniform who would be happy to slice off our heads, he's comparing our troops to Nazis. You know I went back and did a little research Don. Paul Johnson wrote a book "Modern Times" on what went on, what the Nazis did. Let me just read a paragraph. 'Dr. Sigmund Rascher conducted low temperature tests at Dachau killing scores. Polish girls were infected with gas gangrenous wounds. There was mass sterilization of Russian slave laborers using x-ray's. Other projects included injection of hepatitis virus at Sachsenhausen. Of inflammatory liquids into the uterus to sterilize at Ravens Brook. Phlegmon in Dutchen experiments on Catholic Priests at Dachau. Injections of typhus vaccines at Buchenwald and experimental bone transplants and the forces drinking of sea water by gypsies'. That's what happened, and the Nazis did. Does that sound like what's going on at Gitmo?"

Imus: "Durbin is a moron."

Congressman J.D. Hayworth: "Well he's got a lot of company with Pat Leahy... maybe this is just special outreach to Howard Dean and they say publicly ' Gee chairman Dean you're not alone.' I mean this stuff is nuts."

Hayworth went on to say that the guards at Gitmo should just go ahead and execute these "enemy combattants" as U.S. troops in World War II did.

I think I need to clear up a few things? Do I think that there was/is torture at Gitmo? Most likely there was and may continue to be. What should be done there? Get your info. through approved techniques, don't violate the Geneva Convention and then either charge or release them. Are the prisoners there potentially dangerous? Yes, but they are by no means the "top level" like OBL or KSM.

Both sides here need to stop the inflammatory rhetoric and FIX THE PROBLEM! We have a human rights issue on our hands and it needs to be fixed. Naturally, when politicians are charged with such a task, it will never get solved. Also, NEVER USE NAZI ANALOGIES! I laid this argument out yesterday, but it bears repeating. There are constant abuses against human dignity and rights; the Nazis were the quintissential regime of terror. Their kind, hopefully, will not darken the earth again. We are the authors of this future. Let's stop waving the bloody shirt and concentrate on the issue at hand.

These are far too important matters to leave to politicians.

NOTE: Why don't you write J.D. Hayworth and tell him what you think of his comments, violence, distortion of history and hate-mongering?

Drop Hayworth and email here.

Rep. J.D. Hayworth
2434 Rayburn House Office Building
Washington, DC 20515
202-225-2190

Rep. J.D. Hayworth
14300 N. Northsight Blvd.Suite 101
Scottsdale, AZ 85260
480-926-2151

Playing the Nazi Card

It seems whenever a speaker, usually a politician or media person, wants to make an extreme argument or comparison to something that was terrible, they play the "Nazi card." It is the surefire way to get people to perk up and pay attention. It also serves to insulate the speaker, in as sense, from a measure of criticism because that would bespeak tacit support for the legacy of one of history's bloodiest and most demented regimes.

Well, Illinois Senator Dick Durbin (D) did just that in reference to U.S. military personnel, on the floor of the U.S. Senate no less.
And he refuses to apologize for it, apparently.

There is no doubt that the imagery and reality of the Nazi regime in 20th century Germany are among the most disturbing and potent that exist in recorded memory. There mere mention of Hitler, the Nazis, the Holocaust invoke (and rightfully so) feelings of disgust, regret, sadness, loss and shame. This was truly one of the saddest chapters in human history, a turning point of history in the 20th century and a clarion call for the world to remember, "never again."

It is truly a shame when this powerful and sad imagery can be invoked at any time when a speaker finds a gap in his/her rhetoric and feels that they need to drive the point home. No real point or conclusion? Speech lack that final blow that will knock them over? Compare someone or something to the Nazis and they automatically become evil, you are seen as better for pointing out the similarity and that is that, right? It's all just history, right?

This does nothing less than cheapen the meaning and suffering that the Nazi regime wreaked on Europe during their damnable reign. It also, with overuse, lessens the real opprobium that belongs to the Nazis, who become in the process another devalued and meaningless metaphor. Remember what happened, gradually, to terms such as "liberal" and "conservative?" They are utterly meaningless because they were invoked by enemy and supporter alike ad nauseum. This cannot happen with the grim memory of the Nazis.

It also does rhetorical violence to several underlying ideas of history. The primary among these is, despite what George Santayana would have you believe, that history never really repeats itself. Each era and occurrence happens in a particular milieu which must be understood to understand the roots of people and events. There is no simple cyclical nature just as there is no simple linear nature to history. So to compare the Nazis to anyone is a useless exercise because their times and place are different and so were they. It dehistoricizes these historical happenings and makes them meaningless metaphors. This is violence to the present, past and future.

Shame on you, Senator Durbin. I wonder what your Jewish/World War II veteran/Holocaust survivor/historian/human being (really) constituents would have to say to you about this.

Hopefully they will let you know.

NOTE: To contact Senator Durbin:

Send Senator Durbin an email on his website.

Senator Richard J. Durbin
332 Dirksen Senate Bldg.
Washington, DC 20510
(202) 224-2152
(202) 228-0400 - fax

OR contact one of his regional offices in Illinois:

230 South Dearborn Street
Suite 3892
Chicago, IL 60604
(312) 353-4952
(312) 353-0150 - fax

525 South 8th Street
Springfield, IL 62703
(217) 492-4062
(217) 492-4382 - fax

701 North Court Street
Marion, IL 62959
(618) 998-8812
(618) 997-0176 - fax

Celebrities Are A Sociocultural Disease

I swore that I would make no comments concerning Michael Jackson here, so I will keep this short and pointed. Apparently 12 people from Santa Barbara County, California think that this 46 year old man with drug and alcohol problems who admitted sleeping with minors and seems to love porn (and the two in some combination) is innocent on all charges. If I paid that much for a lawyer, I would hope that they were so convinced. I think that this just speaks to the damnable obssession that Americans have with celebrity. We need them to act in deplorable/depraved/violent/gut-wrenching ways and they need us to keep caring. It is a sick cycle of depencency.

They live in their own world with its own rules and consequences for bad behavior. There is no difference between fame and infamy, no divide between acceptable and condemnable behavior. They know damned well that they can do whatever the hell they want and never face the level of penalty or opprobium that one of us in the lower castes would for committing the same transgresssions. The mere fact that the adulation of the many and their tacit or direct financial support for the activities of this decadent class is the source of their exclusion from the justice for the lesser is absolutely sickening.

The American people are sick addicts for these sorts of people. They seem to thrive on their roller coasters of bad decisions, substance abuse and questionable sexual practices. It helps, in a twisted logic, to deplace the crushing malaise and soul-sapping drudgery that is life in the modern (postmodern?) world. Living vicariously through the sickening acts of these people is as good as being dead. I am not advocating suicide, but if you cannot see it, you have already killed some of the most important part of your character.

What is to be done? Can anything be done? Short of armed revolution, nothing will displace them, and then what? People get to look up to revolutionary leaders and their tawdry lives (remember Russia/USSR - Lenin was merely a tsar without a crown). What might help is ignorance. If people stop caring about the lives of people that they don't know and start caring more about community, family, things that can be changed and made for the better, they might shrivel from attrition. Ignore them and you take away that which creates and sustains them-attention. They are shells of real people with dead matter inside who live only on the attention and acclaim heaped on them by a non-specific ego mass. If this is taken away and, Heaven forfend, people care about things closer to their real lives and situations, these people will suffocate.

Well, now it's up to us. Where do we go?

SHOUT THEM DOWN WITH YOUR SILENCE!

In It But Not Of It: Britain And The EU Crisis

Well, this just continues, as European politics often do, to get more and more complicated. Now it seems that Jacques Chirac and Gerhardt Schroeder are trying to pressure the British and Tony Blair into making budget concessions, including a 4.5 billion euro rebate that they recieve each year.

Read the budget story at the BBC.
Also, consult this handy "Q&A" about the European budget.

There are a few things at work here. First, Chirac and Schroeder have little political capital to play with either at home or abroad. Chirac's 2002 election was questionable as his only opponend was far-right nutjob Jean-Marie Le Pen. More recently, the defeat of the EU constitutional referendum in France has made his lame-duck status even more acute. Schroeder also faces a significant challenge, as does his Social Democrat Party (SDU). The SDU lost a key sub-federal election in North Rhine-Westphalia to the Christian Democrats, the party who had ruled Germany from 1949 until Schroeder took over. So it seems to me that neither of these people have much room to ask anything of anyone, especially Tony Blair who just won an unprecedented third term as P.M. and who will soon assume the EU presidency.

Another dynamic here is, as in most economic situations, who is getting and who is giving. It is the poorer countries in the EU such as Portugal, Greece and (questionably after the last ten years) Ireland who take the most in development funds and contribute the least. It is the richer countries such as France, Germany and the U.K. who give the most. When this rebate was negotiated, Britain was the third poorest country in the EU (the year was 1984). Through the pressure of Margaret Thatcher, the rebate was gained. Now, Britain is in a better spot, and it seems time to let it go.

All of this again calls into question the position of Britain in the EU alliance. It semed that, at least for a time and especially when Blair was first elected, that the "Euroskeptics" who ruled the roost in the Thatcher and Major years were going by the wayside and that Britain was taking steps toward Europe. Given the recent controversies, coupled with the continuing question of Turkey joining the EU (they are already NATO members), Britain's position seems unsure. Will Britain maintain as part of the alliance or will the forces of Euroskepticism take over.

One is reminded of the musing of Winston Churchill that "Britain is in Europe, but not of Europe." Is there something inherently oppositional in the British system/psyche/consciousness against European unity? Is this necessarily bad?

This will develop as Britain takes the reins of Europe. Watch and learn and it will change again.

The Highest (And Most Elderly And Most Secretive And Most Heavy-Handed) Court In The Land

In prompting a discussion of the Supreme Court, I intend to use several articles from the July 2005 edition of Reason magazine to center and frame the debate. I would provide links to these articles, but the print edition hit the street before the online edition hit the ether. I will, however, provide page numbers and links when they become available.

In general, these three pieces have different agendas, purposes and sparked different reactions in yours truly. The first, entitled "Who Should Reign Supreme?" (pp. 24-32) asked several "libertarian" legal experts their opinions on the possible nominees in Bush's second term, their current favorite justice and their favorite of all time. Why the quotation marks around "libertarian?" This article and the responses given show the decided confusion among libertarians over the place and role of the court in the greater scope of government. For example, when asked about their favorite justices of all time, there were a few consistant votes but all shared a similar thread. Several of these people picked the well-known likes of Louis Brandeis, Oliver Wendell Holmes and John Marshall. Others picked such lesser known people as John Marshall Harlan (the only dissenting vote in the infamous 1896 Plessy v. Ferguson decision).

The constant thread seemed to be an admiration for judges that protected civil liberties and wrote interesting and stimulating opinions, usually on dissent. While I agree, having taken a year of Constitutional Law as an undergrad, that there are few better reads (at least where the Supreme Court is concerned) than dissents by Louis Brandeis or almost anything by Oliver Wendell Holmes. It is also doubtless, moreover, that the court's protection of civil liberties is crucial. All of these people, however, missed the bigger point of the place of the court in the government and in society. One did get close in declaring his lack of an all-time Supreme Court Hero. Randy Barnett, professor of law at Boston University, said that

• "Most famous Supreme Court opinions either streched clauses beyond their original meaning to authorize governmental power or interpreted textual barriers out of existence. Given this history, I have no Supreme Court Heroes (p. 30)."

Their picks for favorite current justice were equally all over the map, with votes for everyone from Clarence Thomas and Antonin Scalia to Ruth Bader Ginsburg and John Paul Stevens (in fact, almost all nine current justices were mentioned with the notable exception of Steven Breyer). Same went with most choices for next appointment, mostly picking social conservative Reagan and Bush41 era appointees with decisions under their belt that lean toward protecting civil liberties and also limiting the spread of the government and its powers (which are good). The names are not well known outside the legal community, and will no doubt come to the fore in the years to come.

The second of the articles for consideration is entitled "Unleash the Judges: The Libertarian Case for Judicial Activism" by Damon W. Root (pp. 35-40). I had considerable problems with the argument and the proof offered therein by Mr. Root. He takes as his primary example of judicial activism in the name of libertarian causes Justice Stephen J. Field who served from 1863 to 1897. In his opinions in the Slaughterhouse Cases (1873) and Munn v. Illinois (1877), Root argues that Field represents the proper role for libertarian judicial activism; namely, protecting the rights of business over government regulation.

Now, I do agree in the complete and total separation of government and business, and in the fact that the above mentioned Field decisions did help to protect competition over regulation. What I take issue with is the nature of the argument in general. Root seems to argue, like people from all over the politcal spectrum, that judicial activism is good when it supports things that you support and bad when it goes against you beliefs. This rather one-sided argument misses the point that any action by the court that infringes on rights, trampling on the Constitution or making the sway of the state bigger and more pervasive are wrong and not consonant with the libertarian ideal. You cannot use evidence of positive decisions to prove that the result of those decisions are a positive reflection of a libertarian position of judicial activism. It makes the smaller point while missing the larger issue.

Lastly in July 2005's Reason, is an interview with judicial historian David J. Garrow entitled "Supreme Court Senility (pp. 44-46)." Garrow, in his research into recently deceased justice Harry Blackmun, makes some startiling findings on aged justices and their disconnect from the real work of the court. He also gives some shocking historical examples of elderly justices throughout history letting their clerks write decisions for them, ignoring duties, falling asleep during proceedings, forgetting lawyers and litigants names and so on. This exposes not only the notion that these appointments should maybe have an age limit but also the sloth and indifference that really exists at the highest levels of our government. These people are set for life, allow their staffers to do the hard work, and bask in the prestige of being a justice. Who would want to give this up? It is truly disturbing.

In summation, the Supreme Court is a subject for debate and contention. It's importance cannot be ignored and its place in society and history, but this place seems to be one of control and undue influence which cannot continue. I close with the words of legal scholar and economist Frederic Bastiat who, in his 1850 treatise The Law, wrote:

• "Can the law-which necessarily requires the use of force-rationally be used for anything except protecting the rights of everyone? The law is organized justice. Now this must be said: When justice is organized by law-that is, by force-this excludes the idea of using law (force) to organize any human activity whatever...the organizing by law of any one of these would destroy the essential organization-justice. For truly, how can we imagine force being used against the liberty of citizens without it also being used against justice, and thus acting against its proper purpose(1)."

Your thoughts?

Notes

1. Frederic Bastiat, The Law, trans. by Dean Russell (Irvington-on-Hudson, NY: Foundation for Economic Education, 1998) , 20-21.

Nursing The Six-Month Hangover

Ran across a great summation of Election 2004 six months on by Reason magazine managing editor Jesse Walker. It appears on page 22 of the July issue of Reason (would link to it, but it is not online yet..got the print edition first.) It crystalizes the feelings of many, especially people who ended up on the losing side (which, as a third-party voter, usually happens to me), but it is in special reference here to the Democrats.

• "Six months after Election Day, campaign '04 feels a bit like that bourbon-fueled night you made out with the clerk in the next cubicle, or the summer you joined that self-improvement group that turned out to be a cult, or the year in junior high when you wore parachute pants everywhere and insisted against all evidence that you could breakdance. Mistakes were made. In retrospect, everyone involved looked a little foolish. The tactful thing to do is pretend it never happened."

Rest of the article is pretty good too, especially his assertion (sensible, that) that politicians and their constant moral grandstanding and floating values debates just serves to point out how clueless these people really are most of the time.

Quick and Dirty...

...that's how we like it!

• As mentioned in this space yesterday, and confirmed by the Washington Post today, prosecutions of offenders under the newly asserted right of federal prosecution for medicinal marijuana users seems unlikely. Ahh, isn't it grand that sometimes the best that we can hope for is for bad laws to die from lack of enforcement?
• Forget John McCain. Forget Rudy Guiliani. Forget Jeb Bush, Condi Rice or any other possible 2008 Republican challenger. The most dangerous single person for the future of the Democratic Party is Howard Dean, as this clip and story show. The things that he said are, in many ways, glib but true. Still, want political death all over again? Keep this guy at the helm and he will make John Kerry look viable and electable.
• Speaking of John Kerry, this was an interesting story in the Boston Globe today. Seems the cerebral, intellectual, sober John Kerry didn't do much better than the social, back-slapping drunk George W. Bush. If these records are indeed correct, it just goes to show that 1. it IS hard to get good grades at Yale and 2. our society will never be run by our smartest people. This is not in any way a bad thing.
• Bored? Wanna crank call Chinese celebrities?

Longer reflections to return tomorrow. Expect to revisit the Supreme Court question, like it or not.

Supreme Court: Let's Not Help The Sick And Dying

It is just this sort of thing that proves that the U.S. Government is not particularly interested in the health and well-being of the citizenry. In a highly-publicized move, the court reasserted the right of the federal government to prosecute and jail people for growing medicinal marijuana and using it even in the nine states where such things are legal (there is also a bill in front of the New York state legislature to do the same).

Read the story from the Associated Press.

The author of the majority opinion, John Paul Stevens, uses an agrument that claims that this is a matter of interstate commerce and trade in illegal substances. Give me a break. This argument orbits around a crucial issue and another sort-of important issue.

First, the crucial issue in the case of medicinal marijuana is that of compassion for the suffering of other human beings. By making laws such as these, the state is denying a potentially helpful treatment to people who live and die in horrible pain. Not all people respond to all treatments and it is the province of medical science to expand the "doctor's toolbox" of methods to treat the sick. By doing this, it shows that the primary interest of government is, as it has always been, control and prosecution of the embarrassing failure that is the "war on drugs."

The purpose of a limited government should follow the dictates of Utilitarianism put forth in the late eighteenth century by British philosopher Jeremy Bentham. Bentham argued that every situation should be approached to provide the maximum good for the maximum amount of people. To deny people any available treatment for their illnesses is inhumane and wrong. Government is not a friend of the people; it is certainly their most insidious and constant enemy.

The other issue at stake here is the idea of state's rights and the composition of federalized power. I have never thought that the Supreme Court is a fair body. It is an unelected body of people who serve life terms. The purpose of the court, according to that forgotten document the U.S. Constitution, should be to review legislation. This has, however, expanded over the years beginning with Marbury v. Madison in 1804. This established the concept of judicial review and set the stage for years of expanding court power. The federal government should have no such powers over the states. Power needs to be decentralized to the states, especially on matters like medical marijuana. In reality, as was said by the Attorney General of California, this will be a law that will not see much change in the short term for people who use marijuana for a curative.

It just further proves that, just as in the case of stem-cell research, the government would rather dead, "moral" citizens than living marijuana users. We are a nation that is prepared to put sick people in jail for trying to cure their illnesses. This is a sad day for freedom and compassion in America.

LEGALIZE MARIJUANA NOW! RELEASE ALL NON-VIOLENT DRUG OFFENDERS! GIVE HOPE TO THE SICK AND DYING!

Support NORML and other organizations that support the cause.

Deep Throat Leftovers

Just a few notes and updates on the Deep Throat revelation of last week.

• I didn't mention it, but natually the likes of Pat Buchanan are going to support Nixon to the death. Pat Buchanan owes his life to Nixon and cannot say a bad word about him.
• The Albany Times-Union of Albany, NY reported today that there were other FBI personnel that helped Mark Felt with information to leak to Woodward and Bernstein. This deepens the notion, as discussed in this space last week, of "Deep Throat By Committee.
• I think that it was particularly smarmy that the likes of G. Gordon Liddy appeared on television decrying the morals and ethics of Mark Felt. Liddy is a convicted felon; same goes for Charles Colson, also smarmy and a "born-again Christian."
• My compatriot Mr. Aaron Cynic, pointed out the coincidence of these revelations and the case of the Newsweek Gitmo story of two weeks ago. Seems interesting that this discussion of un-named and uncredited sources would happen in such tight concordance. Makes you think; it should, at least.

Post Comp Getaway

Sorry for the lack of posting. Was studying for my comp exams for my master's degree, then took a few days off. Let's see what we got for ya...

Deep Throat Endgame and the Nixon Legacy

Well, this is one of those news items that people have been waiting for thirty-three years to hear. One of the great mysteries surrounding probably the greatest political calamity of the second half of the twentieth century was apparently solved on Tuesday. The mysterious "Deep Throat," who was the inside source for the Washington Post's Bob Woodward and Carl Bernstein's expose of the secret web of interrelations behind the Watergate break-in and subsequent cover-up. This, as we all know, was the central issue that brought down President Richard Nixon and changed the way Americans think of their president and political leaders.

This is the story that broke it all: Read it in the latest issue of Vanity Fair magazine.
Read the coverage that includes the confirmation from Bob Woodward in the Washington Post.
Also, check out their excellent timeline of Watergate events (that forgets the death of Richard Nixon on May 17, 1994 for some reason).

I will approach this topic from three angles: what I heard said in the media by former members of the Nixon White House, my reaction to this news and a discussion of the impact of this new information on the contested legacy of Richard Milhous Nixon

First, what the "Nixon generation" and others connected to the Nixon administration had to say on the talk shows and such (they all seemed to make the rounds of CNN, MSNBC and FOX News).

• Charles W. Colson - Special Counsel to President Nixon - Colson, who participated in many of the vaunted taped conversations collected in the White House claimed that he suspected that Felt had something to do with the leaks as he had leaked stories in the past. He supposed that this was the way that Nixon felt too. Colson reserved judgement on wether Felt was the only one or wether Deep Throat was a composite of a few people.
• John W. Dean, III - Counsel to the President - Dean, who is generally thought to have been the one that ordered the Watergate break-in, said definitively that Felt may have been a part of it, but was not the only one. He points to Woodward's stories and citings of Deep Throat that are inconsistent with the facts that he would have been privy to as Deputy Director of the FBI. Dean wrote a book on the subject in 2002 (so has his successor as Counsel to the President Leonard Garment) wherein he details these arguments.
• G. Gordon Liddy - Finance Counsel, Committee to Re-Elect the President - Liddy, in his incomparably crazy style, made his central point that the likes of Felt are traitors and should not be considered good Americans. On a more realistic note, Liddy (who was one of the Watergate burglars) noted that it was most likely Felt, but had his doubts about any close friendship between Felt and Woodward. Liddy also made a point of saying that John Dean didn't tell Nixon the truth about Watergate for nine months, making the messy cover-up necessary; more about that later.
• Pat Buchanan - Speech Writer for President Nixon - Challenging Liddy for craziness, it was often speculated in the past that Buchanan might be Deep Throat. He, like Liddy, called Felt a bad American who cost a man the Presidency. He did make a good point in that Nixon, in the famous 1976 David Frost interviews, said ultimately he was the architect of his own political destruction. Buchanan said that Felt was a major part of the leak of information from the government to the press.
• General Alexander Haig - Chief of Staff to Nixon (after H.R. Haldeman resigned) - Haig was the only one that I heard who said for certain that Felt was the only one. In fact, he claimed that he made this speculation in his second book, but that section was edited by his publisher. This sort of claim, furthermore, would not be out of character for Haig (remember his classic "I'm in charge" statement after President Reagan was shot in 1981).

...and there were others, people like David Gergen (who apparently has been whoring himself out to every administration and party since Nixon). Second of all, what to make of all of this? Having studied some of the situation surrounding Watergate (I was quite infatuated with it when I was in high school), I can say for myself that Felt was a likely suspect but I agree with Dean and Colson that he couldn't have been the only one. If you look at Woodward and Bernstein's 1974 book All The President's Men, Deep Throat is first described on page 71 as a "member of the Executive Branch," and later alluded to someone who was a White House insider. I really don't think that the Deputy FBI Director would have been privy to the scope of information that Deep Throat revealed. So who were the others?

The real focus is now on Woodward and Bernstein and their response to this news. It will most likely break in the next few days and it will hopefully fill in the rest of the story. Although they did admit in the Post that Felt was the guy, it remains to be seen what more he knows and what more Woodward and Bernstein can now reveal from their own investigation. The spotlight is really, as John Dean piquantly pointed out, on the integrity of Woodward's journalism. While I think that Woodward has reached the unimpeachable level (or close to it), in the era of Newsweek and Dan Rather, who knows?

Lastly, what impact, if any, does this development have on the legacy of the Nixon administration. For now, I think it is too early to judge such a thing, but I can speculate that more information will come out that may confirm some suspicions. What do I think of the presidency of Richard Nixon? I think that he is a complicated figure who has left a complicated legacy to American history. Clearly, his administration was fraught with corruption, deceit, lying, and breaking the law and it seems just that it was toppled from the top, causing the only president in American history to resign on August 6, 1974. Nixon was a paranoid man with an obssession for secrecy and loyalty. He tried to surround himself with a protective wall of people who coult deflect the unimportant and control access to power in the executive branch. This wall, mainly composed of H.R. Haldeman and John Erlichmann, kept the president so sealed off that when the Watergate was broken into, he didn't learn about it for nine months. This is partly John Dean's fault and why Nixon ever trusted him is unclear. So, clearly, there were problems in the Nixon White House.

It always struck me, however, that these sorts of things went on all the time and these guys just got caught. Who knows what secret dealings in the halls of power go down without anyone else knowing. If Nixon had done the right thing, and not given comfort or concession to the Watergate burglars, and Dean would have told him right away, I feel that the crisis would have stayed inside the White House at least until Nixon was out of office in 1976. The Presidency is a large part damage control and Nixon didn't have the info on time.

Is there anything good that can be said about Richard Nixon and his presidency. Unfortunately, he is a character that will be overshadowed by the great calamity of his administration. In domestic policy, Nixon ran in 1968 on a "law and order" policy, y'know get the hippies under control. He did pass some landmark legislation in his time, such as the 1972 Clean Air and Water Act and the 1970 Organized Crime Act (RICO Act). He was also, in my estimation, the last of now seemingly dead strain in the Republican Party-non-conservatives. It was 1964 when Barry Goldwater laid the groundwork among the younger members of the Republican party for the rise of conservatism in the party. Nixon was a product of an earlier generation, having served as Dwight D. Eisenhower's vice president from 1953-1961. Nixon was conservative on many accounts, but he also moderated with such things as wage and price controls (a policy that would have made Ronald Reagan drop over dead) and dialogue with the Russians and the Chinese.

It is often said that in foreign policy, Nixon made his most positive contribution to the century. The first U.S. President to visit a Chinese President and a Soviet Premier, Nixon was absolutely in his element when he was in conference with Mao Tse-tung or Leonoid Brezhnev. He made these moves in the dead of the Cold War. He even negotiated the SALT II treaty in 1972, paving the way for nuclear detente with the Soviet Union. I think that no U.S. President can claim that they ended the Cold War...the oppressed people of the Soviet Bloc were more than happy to do that. Nixon did, however, prove to the world that the Soviet Union and the PROC could be engaged in discussion and could be negotiated with, a fact that had not been tried since Stalin at Yalta and Potsdam in 1945 and 1946, respectively. The Soviets were people with needs, fears and desires; Nixon understood this and played it to his advantage.

So, I believe that Nixon will not go down in history as demonized as he has seemed in our lifetimes. He did bad and illegal things, but so have other presidents. They ARE just people. His legacy will be divided and open to contention for years and years to come. There will come a balance as the current memories of my parent's generation melts into the abyss of historical time. In an odd way, it is then when more even-handed judgements can be made with the cool detachment of the professional scholar. One must never forget, however, the mind of the people (however that may be expressed) in shaping history and legacies of prominent people.

So, in a way, I guess we will always have Nixon to kick around, for better or worse.

Works Cited

1. Bernstein, Carl and Bob Woodward. All The President's Men. New York: Simon and Schuster, 1974.