View Full Version : Dirty Dozen III

01-16-2010, 7:27 AM
Kelo v. City of New London (2005)

The Fifth Amendment states that private property may be taken by government only for public use, and then only if just compensation is paid to the owner. That language, allowing the camel of statist greed to get its nose under the private-property tent, was never very clear, and over the years, what was intended as a bulwark against the abuse of eminent domain has eroded to almost nothing. We have the Supreme Court to thank for that.

In Kelo, the Court might have repaired the defenses but instead weakened them. The City of New London, Connecticut, wanted to seize a lot of riverfront property so that a private development with offices, a hotel, shops, and upscale condos could go in. It was a classic case of government officials drooling for increased tax revenue and taking land away from homeowners who paid relatively little in taxes so that businesses that would pay much more in taxes could have it instead. Suzette Kelo complained that the taking was unconstitutional because it was not for a public use. Unfortunately, a majority of the justices disagreed, holding that the taking was permissible because it was supposed to have a public purpose.

Justice John Paul Stevens declared that “economic development” was a key government function and thus if some people had to give up their property for the supposed “greater good” of the community, the Fifth Amendment did not stand in the way. New London therefore could take Kelo’s home for its “revitalization” project (which, incidentally, is languishing). Even Justice Sandra Day O’Connor, usually one to defer to the supposed expertise of government planners, couldn’t go along, writing, “Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping center, or any farm with a factory.”

Kelo means that so long as they follow certain formalities, politicians can take any property they want. The Founders certainly did not intend government to have such power, but the Court is more concerned with the illusory benefits of government coercion than with the rights of individual property owners.

Penn Central v. New York (1978)

Penn Central is another property-rights case, but involving a “regulatory taking” rather than eminent domain. Governments can and often do regulate a property in such a way as to greatly lower its value — sometimes to virtually nothing. When it does so, must it compensate the owner? How far can government go before it has gone “too far” and must pay?

Following a merger in 1968 with the New York Central Railroad, Penn Central became the owner of Grand Central Terminal in New York City. The company wanted to construct an office building over the terminal. Another 50-story structure in New York: What could be the problem with that? New York City’s Landmarks Preservation Law, that’s what. A commission had been given the task of identifying buildings that were “landmarks,” and once a building was so designated, the owners could not alter it in any way without the approval of the commission. Penn Central’s plans for the new structure were submitted to the commission, but it rejected them, costing the company around $150 million in annual revenues. It sued.

When the case reached the Supreme Court, the justices had to decide whether New York had to compensate the company if it enforced its “landmark” regulation. Justice William Brennan’s majority opinion ruled in favor of the city. Mellor and Levy comment,

Brennan’s characterization makes compensation depend on the elusive notion of what is just and fair. But the language of the Fifth Amendment presupposes that compensation is required unless the government can demonstrate otherwise.

Worse still, Brennan’s opinion pivoted on the idea that in cases of this sort, the focus should be on the value that still remains after the regulation rather than on the value that has been lost.

As a result of Penn Central, governments around the nation have been given almost unfettered discretion to regulate away the value of private property. One favored technique is to impose moratoria on permission to develop land where one “temporary” restriction follows another and the owner never gets to build.

Grutter v. Bollinger (2003)

Should governmental institutions be allowed to establish classes of citizens and treat some differently than others? For instance, under the “Jim Crow” laws, governments in the South used to require that whites and blacks be treated differently in many respects. Those laws were declared invalid under the Fourteenth Amendment’s Equal Protection Clause years ago, but what if governments choose to adopt “affirmative action” programs that set different admission standards for applicants to state universities depending on their race? Is it acceptable to replace the “bad” discrimination of Jim Crow with the “good” discrimination of programs that aim to increase “diversity”?

That was the issue in two cases involving the University of Michigan. Gratz v. Bollinger involved the admissions standards for undergraduates and Grutter v. Bollinger involved the admission standards used by the university’s law school. Both gave preferences based on the race of the applicant (for blacks, Hispanics, and American Indians), but the undergraduate system was very mechanical, automatically assigning a certain number of points simply on the basis of ethnicity. The law school’s system, however, was designed to look more “holistic” — that is, its preferences were adroitly masked by professed interest in vague qualities such as “leadership.”

The Supreme Court ruled that the undergraduate admission policy was unconstitutional, since it focused too much on race, while the law school’s policy was permissible. The Court uncritically accepted the law school’s assertion that it needed a “diverse” student body in order to reap the alleged educational benefits of having differing views expressed in class. Whereas the Court had traditionally required “strict scrutiny” of any law that classified people by race, in Grutter it didn’t bother with any scrutiny at all, merely taking the university’s word that racial preferences to achieve “diversity” were good.

This decision has the potential for weakening constitutional rights in an array of settings. For example, freedom of speech may be undermined. What if, the authors write, “a university determines that some purported educational benefit might be derived from its suppression?” The Court has already undermined the First Amendment with the notion that the “compelling governmental interest” in “fair” elections trumps free speech and now we have the “compelling governmental interest” in diversity on the loose, threatening other rights.

There you have them — the dirty dozen: Twelve cases (now only eleven, but there are many contenders for inclusion; my own favorite is Jones & Laughlin Steel v. NLRB, the 1937 case that okayed the horribly authoritarian National Labor Relations Act) that have done tremendous damage to our freedom by expanding the power of government.

At the next confirmation hearing for a Supreme Court justice, I hope to see senators thumbing through The Dirty Dozen hunting for tough questions to ask the nominee. There is an abundance of material in it to help sort the libertarian, pro-individual-rights wheat from the statist, pro-government chaff. And if you are one who wants to understand how so much of our liberty has been whittled away, this book goes a long way toward answering that question.

01-16-2010, 7:41 AM
Dude, just read through your three posts and am now thoroughly depressed. Crossing fingers that McDonald rights some of the past's wrongs.

01-16-2010, 8:11 AM
I can't believe that they didn't include Buck v. Bell.

01-16-2010, 9:27 AM
I for one am thoroughly angered that the public is not aware of this and does nothing about it, or that some even like it.

01-16-2010, 10:40 PM
You should have posted three times in one thread.

But the biggest case missed BY FAR was US v. Cruikshank, the case that launched 4,000+ lynchings and a whole lot more mayhem across generations.

Dred Scott was in the running too but in my mind, Cruikshank was far worse.

Slaughter-house was right behind Cruikshank, and a direct predecessor.

01-17-2010, 1:58 PM
Patriot, excellent post. Nation States and cultures have come and gone to be replaced with something different along the way. In some cases these dominant cultures self destructed by various means. I am convinced we as a Nation are on the verge of self destruction and the Dirty Dozen are indeed part of the reason. The previously functioning systems that promoted prosperity and justice are now perverted to the path of corruption and destruction. Liberty as we Americans have previously percieved it, can not survive in this current context. I am looking to the next iteration of political and social culture. I think the only way individual Liberty will survive is to get on the Mayflower and sail to a Liberty Community and join in the political evolution occuring. I can't move to Keene NH but I am a friend of and support them. Free Keene and the Free State Project is the new Revolution, the old paradigm is dead. I think this movement while originating in the Freeist State will diffuse outward, it's just a matter of time as the corrupt paradigm fails because Liberty has a life of it's own.

01-17-2010, 2:47 PM
Kelo was deplorable. Interstate commerce is the avenue through the Fed asserts its right to control just about everything.

01-17-2010, 3:24 PM
please tell this layperson what is the basis for "compelling State interest".
How did the precedent for courts come into being to decide in favor of the State to violate the individuals enumerated rights?