Just Above Sunset
June 26, 2005 - Rick Brown on News That Doesn't Fit the Narrative

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There has been a great deal of discussion in these pages on the roll of the press – on just what is news and what is fluff. Last weekend there were three comments, this on the Michael Jackson trial, and this and this. June 5th there was What's News and What Isn't and on June 12th A Shift in the Wind on the issue.

In the guest column below, Rick, the News Guy in Atlanta, writing to the Just Above Sunset discussion group, raises the issue of another story that seems to be getting short shrift.



Atlanta, Friday, June 24, 2005 -

Just to follow up on our recent discussion concerning what some folks consider important news in this country, and what others (in this case, apparently, most) don't:

I was initially surprised about what little stir was caused by Thursday's Supreme Court decision on Eminent Domain, but now I think I understand why.  The ruling actually fudges the lines between liberal and conservative, and almost all of us interested in that "great divide" (myself prominently so) tend to seek definition, not confusion.  As a story, it's hard to tell because it seems to defy our innate sense of up and down - or more to the point, right and left.

I realize some folks to my left barely notice the "progressive" part of me, but I always figured it would be a cold day in hell when I would find myself siding with William Rehnquist, Antonin Scalia and Clarence Thomas on anything whatsoever.  Thursday was that day.

Thomas, in filing his own dissent, said it best: "The court has erased the Public Use Clause from our Constitution."

In essence, if you get on the wrong side of your local government, they can force you to sell them your house, at just about whatever price they decide, to do with (and the land beneath it) whatever they choose, and there is no court in the land that can stop them.

As someone left-of-center, even if mostly only slightly so, I see the stricter (but in this court case, the minority) interpretation of what the founders meant in the fifth amendment when they said "nor shall private property be taken for public use, without just compensation," as the liberal point of view, and am shocked that the liberals on the court would see it otherwise.  Having cut my political teeth during the 1960s, I've never bought into the distorted conservative image of those "socialistic" liberals always siding with government thinking it has the right to tap-dance all over the rights of you or me.

Even on the federalism issue, this ruling seems to have it backwards, with the usual states-rights folks arguing that state and local governments should not have the power to trample on individual rights, and with the usual central-government gang saying that, at least in this case, it's okay.

The only real alignment that might have been predicted here is that conservatives - represented in this decision by those mentioned, along with Sandra Day O'Connor - so often seem to equate "property" rights right up there with "personal" rights.  Still, what strikes me as odd is that this is usually only a problem when the two rights are in conflict, which in this case, they are not.

First of all, we should note that the first ten amendments (or at least the first nine of them) are called the "Bill of Rights" for a good reason, in that they enumerate things that governments will not be allowed to do to individuals; they were not meant to reaffirm the right of government to do to people whatever the hell it wants to do to them!

This court's ruling is one that favors society's powerful over society's weak.  When it comes to eminent domain, governments don't condemn mansions of the well-connected in order to build public housing or highways, they tear down what the powers-that-be consider "blighted" neighborhoods, killing two birds with one stone by getting rid of ugly buildings and the ugly people who live there, and replacing them with a much-needed school or municipal building - or now, with this ruling, a Toyota factory or upscale shopping Mall.

But what happens when, for example, the newly-elected (and, coincidentally, now Christian) city council decides that that Westside neighborhood, where most of the town's homosexuals live and have their bars and hangouts (and, coincidentally, largely voted in the recent election for the "secular humanist" candidates), would better serve the community if it were replaced by a huge church and revival campground that would draw "more respectable" God-fearing citizens from all over the county?  You might say that this example is extreme, but there are lots of people in this country who would see nothing wrong with it.

Still, the displaced citizens could always sue, saying it goes over the line, but over what line, and based on what law?  They could try to take this all the way to the Supreme Court, but there's nothing in the Constitution that will support their case anymore; the Supreme Court has just ruled that there's nothing wrong with governments crossing over any and all lines they feel like crossing.

In fact, it's hard to imagine what grounds there would be to dispute anyone's land being taken away from them, since any government can counter by saying that "we, and nobody else, have the right to decide what constitutes 'public use' under the Constitution."

Yes, the New York Times technically "led" with this story with its upper-right-hand placement on Friday morning's front page, but only under a one-column headline, without the pizzazz.  Then again, it's not been a topic of ongoing discussion, which I think is a shame.  Maybe we do need to find a way to make ourselves understand what topics are important enough to take public notice of.

I know saying this makes me sound like one of those old fuddy-duddies who we all used to affectionately mock, but more and more I'm beginning to realize that the country I leave behind when I die will, in about 250 short years of its existence, have already abandoned many of those rights I was brought up to believe were inalienable - a departure which, unless something terrible happens first, I am genetically scheduled to take sometime in the fall of the year 2028, at which point I will reluctantly have to drop out of this discussion group.

I'm sorry to have to bring that up, but I just wanted you to give you plenty of advance notice so you will have time to prepare yourself for that eventuality.



Copyright 2005 – Rick Brown



Editor's Notes:

The basic story as reported by Associated Press:

Jun 23, 7:13 PM (ET) - Hope Yen

WASHINGTON (AP) - Cities may bulldoze people's homes to make way for shopping malls or other private development, a divided Supreme Court ruled Thursday, giving local governments broad power to seize private property to generate tax revenue.

In a scathing dissent, Justice Sandra Day O'Connor said the decision bowed to the rich and powerful at the expense of middle-class Americans.

The 5-4 decision means that homeowners will have more limited rights. Still, legal experts said they didn't expect a rush to claim homes.

"The message of the case to cities is yes, you can use eminent domain, but you better be careful and conduct hearings," said Thomas Merrill, a Columbia law professor specializing in property rights.

The closely watched case involving New London, Conn., homeowners was one of six decisions issued Thursday as the court neared the end of its term. The justices are scheduled to release their final six rulings, including one on the constitutionality of Ten Commandments displays on public property, on Monday. ...


Click on the link for full detail.

Click here for a full text of the ruling.

Glenn Reynolds:


For Bush and the Republicans it's a big vulnerability - if they don't do anything about it, many conservatives will stay home in disgust at the next election. On the other hand, if they do something - like, say, backing Congressional action to limit takings for private use - they'll offend wealthy real estate developers, merchants, and influential local populations. They'll be squeezed, and I don't think that "help us confirm our judges to reverse this" will be a sufficient answer, though they'll try to make it one.

On the left, it's seen (rightly) as a victory for the hated Wal-Mart, and as a rule whose burden is sure to fall mostly on the poor. (When did a city ever level a rich neighborhood for this sort of thing?) On the other hand, the left isn't big on limits to government power, especially in the economic sphere.


Excerpts from a long comment from Neal Boortz, who maintains he is a libertarian more than he is a conservative –


I cannot remember being more dismayed at a court ruling, and this includes the occasional ruling against me when I was practicing law.

... The Fifth Amendment to our Constitution restricts the government's right of eminent domain. It does not, as I heard so many commentators say yesterday, grant a right of eminent domain, it restricts it. The right of eminent domain was assumed as a basic part of English Common Law. The Fifth Amendment merely said that government could not exercise this right for a public use without paying for it. The exact working is "nor shall private property be taken for public use without just compensation."

... The new theory is that increasing the property taxes paid on a parcel of property is a public use. Increasing the number of people who can be employed by a business located on a particular piece of property can also be a public use.

... Bottom line: If you own property, and the government wants that property - you're screwed.

... I believe this Supreme Court decision to be a victory for the dark side in the war against individualism. Sadly, sometimes I think that I'm the only one out there who realizes that this war is being fought ... the only one on the side of individuality, that is.

... The Supreme Court decision is a horrible blow to private property rights.


Andrew Sullivan makes a comparison to the recent decision on medical marijuana Gonzales v. Raich that goes like this:


If you grow pot in your attic solely to help you survive chemotherapy, you can be prosecuted by the feds under the "inter-state commerce" rationale. Now you can have your property stolen by Wal-Mart and be unable to get any recompense either, as long as your local representatives, financed by the real estate lobby, go along. Is this an unfree country or what? And, of course, none of this breaks new ground. That's the really depressing part. It seems to me that the most inspired pick for the Supreme Court would be a thoroughgoing economic and social libertarian. The freedom-loving part of the Republican coalition has already been alienated in so many ways by this administration. A libertarian SCOTUS pick would go some way to winning them back.

UPDATE: I'm also guilty of hyperbole. As one reader reminds me: "I'm with the dissent. Nevertheless, 'unable to get any recompense' is flat out wrong. They still have to compensate the owners for their property." Point taken. It's just a lot easier for the government now than it was.


But perhaps Rick, the News Guy in Atlanta, is onto something.  The story doesn't fit the normal right-left narrative the press uses.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
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