24 March 2015

Kelo, ten years later

It was just last week sometime I was wondering about this.
In its highly controversial 2005 decision in Kelo v. City of New London, the Supreme Court ruled that state and local governments have the power to take private property and transfer it to other private owners in order to promote “economic development.” It thereby upheld a poorly conceived development plan in the Fort Trumbull neighborhood of New London. Unfortunately, as critics predicted at the time, the plan fell through and the condemned property lies empty to this day, almost ten years later
So, your local government condemns and takes your property and then, well, nothing. To call this insult added to injury would hardly do it justice, so to speak.
23 March 2015

No government can claim the specific power

to command its subjects to buy any particular good without tacitly claiming the more general power to command subjects to to buy anything at all. And given the nature of human action, a government cannot claim the specific power of mandating purchases without tacitly claiming the more general power of mandating anything at all, to include voting.

For example--to drive home the point with a hammer--the way is paved for a subsequent generation of Americans to be commanded to embrace a religion upon pain of taxation. (Justice Roberts explained it.)

You think I exaggerate. But there is a footnote in Justice Roberts' opinion in NFIB v SIBELIUS which should replace footnote 4 in US v. CAROLENE PRODUCTS as the most famous footnote in US legal history.

In footnote 11, (slip opinion, 44), Roberts writes:
[I]ndividuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so.... But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.
So we still have freedom of choice: (i) choose to buy insurance and pay less in taxes; or (ii) choose not to buy insurance and pay more in taxes. It amounts to a choice between lower taxes and higher taxes. Ah, freedom.

This reasoning could be applied to any act whatsoever, including mandating a religion (or even atheism)--as long as it's tied to congressional taxing power. (No doubt places of worship will be required to keep records of attendance at services, and to make those records available to the IRS upon demand so that miscreants can be fined.)

Here's how the reasoning in footnote 11 could be applied to a law mandating, say, Islam:
Individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so.... But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the tax is predicated. Americans may (i) choose Islam and pay higher taxes, or they may (ii) choose some other religion and pay lower taxes. The only thing they may not choose to do is (iii) embrace something other than Islam and (iv) not pay the resulting tax.
So that future generations would still have freedom of choice regarding religion: (i) choose (a) Islam and (b) lower taxes; or (ii) choose (c) something other than Islam and (d) higher taxes.

One can easily anticipate two obvious objections. (i) No one is talking about making people choose a religion. To which I reply: Yes. And When ROE v WADE was decided, Chief Justice Burger, wrote in his concurrence, "Plainly, the Court today rejects any claim that the Constitution requires abortions on demand." Burger may have been correct in January 1973, but not for long. Burger was entitled to his concurrence, but the opinion of the Court was written by Justice Blackmun, and that opinion made abortion on demand difficult to argue against. Right of privacy and all that. (ii) The Constitution does not explicitly prohibit Congress from making us buy things, while the First Amendment explicitly prohibits Congress making laws respecting an establishment of religion. To which I reply: PLESSY v. FERGSUSON, in which, with the sole exception of Justice Harlan, the Court managed to get round the 13th and 14th Amendments. More relevantly, SCOTUS has treated acts which do NOT establish any religion as if they do so. It will be quite easy, no doubt, to treats acts which DO establish a religion as if they do not do so, especially if they can be linked to the "public interest", the "commerce clause" and--le piece de résistance--the taxing power. And this will be true especially if the law requiring the choice of a particular religion is sufficiently popular, with both houses of Congress, and the Administration.

No, it wouldn't happen overnight, of course. But, two words: (i) Overton and (ii) Window.

It's no exaggeration to call this totalitarianism:
We should understand totalitarianism to refer not the severity of the regime, its propensity to use such tools as terror and concentration camps, but rather the scope of its purview. A totalitarian regime is one that seeks to control every aspect of communal life, and to bring as much of private life as possible into the sphere of the communal. ~ Herbert Schlossberg, IDOLS FOR DESTRUCTION, 222-23.
Not that this guy started it.

The famous footnote 4 in US v. CAROLENE PRODUCTS:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. 

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. 

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. 
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Search

Loading...

About Me

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

Blog Archive

Capitalism