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.)


Lee said...

Great post. However, if I may ask, why do you favor Congress having the right to override the Supreme Court? Have we not seen how effective Congress is? They cannot even confirm an ambassador to the UN. Why not two-thirds of the States? Then you do not have to depend on the Federal Government to correct Federal problems.

James Frank Solís said...

Lee you ask a good question. The reason I would not have a problem with Supreme Court decisions being corrected by 2/3 majority of both houses is due to my first stipulation: that the Supreme Court be deprived of the power of review. Once that is done, I daresay, there will not be as many corrections necessary as at present. Secondly, requiring 2/3 of the states is the same as requiring constitutional amendment. Thirdly, despite the problems you identify, the legislative solution still has just the superiority I asserted: it is at least democratic. That may not be much better than the present arrangement, but "not much better" is still "better".

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