30 June 2005

Is this a republic, or an oligarchy?

Some observations on Kelo v. City of New London

So, the Supreme Court has decided that your local government can condemn your private property, and turn it over to another private entity. (You can read or download the opinion at the Institute for Justice website, right here.) Of course, the justification for this is that according to the Constitution, government can take private property for public use if there is just compensation. Additionally, the Supreme Court, in a long line of cases, has decreed that since "public use" entails "public benefit" the inverse is also true: "public benefit" entails "public use." Therefore, the "use" doesn't actually have to be public as long as the "benefit" is. And this "benefit" can be nothing more than increased tax revenue. So then, if a developer can transform your property into something that increases the value of your property, and thus the amount of tax revenue the property will generate, then your local government can take your property, give you what it calls just compensation (which will not be based on the increased value of the property after the developer gets finished with it!), and give it to said developer. So then, a government which was formerly charged with protection of private property rights is now transformed into something that protects government tax revenue rights.

Now, as Irwin Chemerinski noted (Hugh Hewitt Show, 2d Hour, 27 June 2005) the court only applied a chain of reasoning it has followed for a long time. Right. That's the problem with it. The Court could have looked at this and seen that this is just where you get when you confuse the concepts of "use" and "benefit". The assumption underlying this confusion of concepts is that the Court can define the terms in the Constitution as it sees fit. And who says that the Court can do this? Why, the Court! Boy that sure is democratic republicanism at work. As I said in a previous blog: if the court can give whatever meaning it desires to the terms in the document then the document stipulates NOTHING that can ever be counted on, and we have no rights. Think of it. We supposedly have the right to petition our government for redress of grievances. Those grievances will by and large be redressed by our making a claim that our government has violated some provision of the Constitution. But now wait a moment. If a branch of that same government, beyond which there is no appeal, can simply define the terms in the Constitiution, then it can define the terms such that no grievance has actually arisen. At present, the only thing that can be done every time the court defines--or re-defines--a term is to amend the Constitution. Think about how many times that would be necessary.

(The court could also have looked more closely as the silliness of the proposition that the public benefits merely by adding to local government's coffers. That's why those who asserted that conservatives should be pleased with this decision because it benefits business are wrong. Conservatism isn't about business first, then private property. The reason that conservatism is about business at all is that one of conservatism's principles is precisely that of the private ownership of property. You must first believe in the right of private ownership, before you can believe in business, which results from private ownership of property.)

Think about this for a moment: "use" means "benefit". If you benefit from something, then, according to the court's logic, that is the same as using it. By extension, if someone, whether or not they are trying to benefit you, shoots someone with a pistol and kills him, and if you are an heir, then you have benefited from the pistol. And if "benefit" qualifies as "use", then you have "used" the pistol. Logically, you ought to be held just as responsible as if you had pulled the trigger yourself. (Why, that's just silly, you want to say. No one thinks like that. But don't they? Are there not people in our society who have claimed, in court no less, that Smith and Wesson--among others--ought to be held criminally responsible for every crime commited with a Smith and Wesson? Indeed there are. And what is the reasoning? When boiled down, it amounts to this: Smith and Wesson benefits from the purchase weapons. "Benefit" equals "use".) Now, of course, someone may want to say that the two cases aren't relevantly similar. But look, once you can define terms like "use" any way you want, you can also define terms such as "relevantly similar" any way you want. So, it makes no practical difference.

We will not truly be in a democratic republic again until two things happen: (1) the Court must be denied the power (a power it arrogated to itself in Marbury v Madison) of judicial review; (2) Congress should be given the power to correct decisions of the Court by a two-thirds majority in both houses. No this won't be perfect, or fail safe. But it will at least be DEMOCRATIC!!!. I want a democratic republic, not an oligarchy! (In fact, I think we might all be better off if we let six farmers who know how to read just replace the six pin-headed intellectuals who think the reader's job is to assign meaning to the text.)
24 June 2005

Getting the guilty isn't the point.

Now that much of the initial furor over the verdict in the Michael Jackson trial is over, I offer my opinion in the matter:

One of the jurors (I believe it was Juror Number 1) explained it correctly. The question in the trial was not, Is Michael Jackson guilty of child molesting? but, Is Michael Jackson guilty of molesting this particular child?

Many of those who are angry about the Jackson verdict, seem to be convinced that the evidence that Jackson is a child molester is incontrovertible. I tend to agree: I doubt that Michael Jackson is not a child molester. But that wasn't the question. The State had to prove beyond a shadow of a doubt that Jackson molested this child, not that he molested children. Jackson, on the other hand, had no burden to prove anything.

Many people--too many, I think--seem to believe that our system is designed to do two things: (1) make sure that the guilty are punished; and (2) make sure that the innocent go free. It isn't. It's designed to ensure that the innocent go free. If you accept, as I do, that our nation's laws are based on the Judeo-Christian system (and, more specifically, Calvinism), then it stands to reason that many of our laws are based on that system. Our rule--"Innocent until proven guilty"--is, despite what secular humanists would have us believe, quite biblical. When a person stands accused of a crime, the biblical law does not require that the accused demonstrate his innocence; it requires that those making the accusation prove it. And if you think about it, the standard of proof is really quite high: the facts against the accused must be attested by two or three witnesses examined separately. If you think about that, reflection should make it obvious that protection of the innocent, and not getting the guilty, is the purpose of this standard of proof. Two or three witnesses--it is not very easy to get two or three people to agree on a lot. And this assumes unanimity on what "agreement" is in the first place.

Are you a Christian? If so, then surely you believe that the gospels are true, that their testimony agrees together. But how many angels were in the tomb when Mary looked in? One or three? Look at the variety in the accounts. Is this the sort of agreement we are talking about? If so then maybe it is not all that difficult to get witness agreement. But on the other hand, maybe the precise question the witnesses are called to answer is more relevant. So, although there does seem to be some variety concerning the number of angels at the tomb on resurrection morning, the gospel witnesses are unanimous on the question: Whoever was in the tomb that morning, Jesus was not among them.

So, getting back to my topic, the witnesses are very important--especially their reliability, which certainly is a function of their integrity. This jury simply did not trust one or more of the witnesses against Michael Jackson. And, while they are fairly certain that Jackson is a child molester (which is to say that the evidence against him leads one to believe that he probably has molested at least one child), they were not convinced that much of this same evidence demonstrated that he molested this child. And that was the question.

Let's think for a moment about something I just said: the evidence against him leads one to believe that he probably has molested at least one child. While it is true that his molesting a single child is enough to characterize him as a child molester, it is not true that it's not being possible that he is not a child molester is the same as its being true that he molested this child.

So when someone like Micheal Gallagher is angry because this jury let a child molester go free, I just don't think he gets it quite right. Yes, a child molester did go free. But his being a child molester is not the same as his being the molester of this child; and that was the question. I'm sorry Micheal, but "not possibly innocent of wrong-doing" is not the same as "guilty." Nor has there been a travesty of justice. In our country--at least for now--justice can only protect the innocent; justice cannot guarantee that the guilty never go free. There is only one way to do that: As we used to say when I was in the Army, "Kill them all. Let God sort them out." That's the only way to make sure that the gulty always pay. Of course, it doesn't do much for the innocent and wrongly-accused, I'm afraid.

About Me

James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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