Posts
The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides. Read the entire article. Don't expect this truisim to get repeated too often. And where it does, expect the point to be shouted down by the progressives who really do not want you to exercise those First Amendment rights.
Progressives, those who profess to be the defenders of civil rights against the centralization and accretion of government power are standing reality on its head. In terms of our traditional rights to freedom of speech, freedom to own property and the like, and not to mention right to own weapons, progressives, and their judicial counterpart, activist judges, regularly act to limit our traditional civil rights. This is often accompanied by imposing new "rights" outside of the text of the Constitution. David Bernstein discusses this as part of an article on the Supreme Court that he wrote for the CATO Institute:
______________________________________________________
This from Mr. Bernstein:
Or perhaps it's not as remarkable as we've been led to think. Consider the Court's First Amendment decisions. Contrary to popular belief, conservative justices are about as likely to vote in favor of individuals bringing First Amendment challenges to government regulations as are the liberals. Indeed, the justice most likely to vote to uphold a First Amendment claim is the "conservative" Justice Anthony Kennedy. The least likely is the "liberal" Justice Stephen Breyer. Consistent with general conservative/liberal patterns in commercial speech cases, Justices Clarence Thomas and Antonin Scalia have voted to invalidate restrictions on advertising more than 75 percent of the time. Justices Breyer and Ruth Bader Ginsburg, meanwhile, have voted to uphold such restrictions in most cases.
Conservative justices also typically vote to limit the government's ability to regulate election-related speech, while liberal justices are willing to uphold virtually any regulation in the name of "campaign finance reform." . . .
Liberals have also been more willing than conservatives to limit the First Amendment's protection of "expressive association." The Court's conservatives held that forcing the Boy Scouts of America to employ a gay scoutmaster violated the Scouts' right to promote its belief in traditional sexual morality. The liberal dissenters thought the government should be allowed to force the Scouts to present a message inconsistent with the Scouts' values.
The Fifth Amendment's protection of property rights presents, if anything, an even starker example of greater commitment to individual rights by the conservative majority. In the infamous Kelo v. New London, the Court's liberal justices, joined by Justice Kennedy, held that the government may take an individual's property and turn it over to a private party for commercial use. The four conservative dissenters argued that such actions violate the Fifth Amendment's requirement that government takings be for "public use."
A few years earlier, the Court's conservative majority held that a government regulation that deprives a land owner of any use of his property amounts to a "taking" that requires compensation. The liberal dissenters would have permitted the government to totally wipe out an individual's investment without any redress.
And consider the issue of government use of racial classifications. Liberal justices have been willing to uphold virtually any use of race by the government--including quotas in higher education, set-asides for government contracts, and raced-based assignments of students to public schools--so long as the government claims benign motives. The conservatives, by contrast, argue that the government must treat people as individuals, not as members of a racial caste.
Other examples could be raised. The conservatives, for example, have been more sympathetic to free exercise of religion claims than the liberals, and more inclined to forbid government regulation of "hate speech."
The point should be clear. There are many ideological differences between the conservative and liberal justices on the Supreme Court. But a consistent, stronger liberal devotion to supporting individual rights and civil liberties against assertions of government power isn't one of them.
Showing posts with label kelo. Show all posts
Showing posts with label kelo. Show all posts
Wednesday, July 2, 2008
The Supreme Court: Activists, Conservatives & Individual Rights
Tuesday, May 6, 2008
McCain On The Judiciary, Kelo, & Originalism
The presumptive Republican presidential candidate said America's courts have strayed far from the edict of the Founding Fathers, who laid out "not just guidelines," but clear directives for the judiciary. Read the entire article. Few policies have done more to destroy community and opportunity for minorities than eminent domain. Some 3 million to 4 million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban-renewal takings since World War II. Read the entire article.
__________________________________________________________
Given the ages of several members of the Supreme Court - John Paul Stevens, 88, Ruth Bader Ginsburg, 75, Antonin Scalia, 72, Anthony Kennedy, 71 - it is quite likely that the next president will make multiple appointments to the Supreme Court. Those appointment will determine its bent as either an activist or originalist court for decades to come - and to understand the ramifications of such a situation, see Justice Scalia's discussion on originalism here. Indeed, besides national security, the power to nominate Supreme Court justices will be the most important function of our next president. With that in mind, this from the Washington Times:
. . . Mr. McCain spoke in Wait Chapel at Wake Forest University, alongside former Solicitor General Ted Olsen, abortion foe Sen. Sam Brownback, North Carolina Sen. Richard Burr and former Tennessee Sen. Fred Thompson — who dropped out of the GOP race and today made his first appearance with Mr. McCain.
The Arizona senator, who has made no bones about courting independent swing voters and moderate Democrats, ticked off several Supreme Court cases, including the case of Susette Kelo.
"Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way," he said. "And this power play actually got the constitutional 'thumbs-up' from five members of the Supreme Court."
He ridiculed the case of the California man who filed a suit against the entire U.S. States Congress — "which I guess made me a defendant, too — to remove the words "Under God" in the Pledge of Allegiance.
"The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were — and I quote — 'impermissible.' ….
"I have a feeling this fellow will get wind of my remarks today — and we're all in for trouble when he hears that we met in a chapel," Mr. McCain said, drawing laughter.
The senator said some controversial court decisions fall under the rubric of "judicial activism," and indicate that the balance of power designed by the Founding Fathers is out of whack.
"Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered "settled law," and everything else is fair game," he said.
The move away from the strict interpretation of the Constitution has doubled back on Congress, where contentious confirmation hearings for judicial nominees is now the norm.
"We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered, the twenty-minute questions and two-minute answers," he said. "No tactic of abuse or delay is out of bounds, until the nominee is declared 'in trouble' and the spouse is in tears," Mr. McCain said, referring to the latest Supreme Court appointee Samuel Alito, whose wife broke down during the congressional hearing.
But the breakdown stretches much farther, the senator said.
"Presidential nominees to the lower courts are now lucky if they get a hearing at all. … At this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina," he said, noting that a third of the Fourth Circuit seats are vacant.
"But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy," he said.
Mr. McCain pointed out his role in the so-called "Gang of 14," a bipartisan group of senators that "got together and agreed we would not filibuster unless there were 'extraordinary circumstances.'
"This parliamentary truce was brief, but it lasted long enough to allow the confirmation of Justices [John] Roberts, Alito, and many other judges. And it showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger," he said.
Mr. McCain took aim at his Democratic opponents, criticizing them for their opposition of Chief Justice Roberts. He lambasted Sen. Barack Obama for his opposition, citing the Illinois senator's words that a Supreme Court justice "should share 'one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.' "
"These vague words attempt to justify judicial activism — come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law," Mr. McCain said.
"Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it — and they see it only in each other."
He noted that when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, "I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise."
Mr. McCain said he would give great care to the nomination of judges, and pledged to restore the core beliefs of the judicial system.
"My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice," he said.
To underscore just how dangerous judicial activism is to our country, one need only look to the first decision mentioned by McCain, the Kelo decision. If you are not familiary with the Kelo decision, you can read about it here. A group of five activist Supreme Court judges rewrote the plain language of the 5th Amendment in possibly the worst Supreme Court decision of the past century. The effect was to take away the limits on government at all levels to allow them to take private property upon a minimum of pretext and give it to commercial interests. It is both an invitation to corruption and a decision whose effects are being felt very much by the poor and by minorities. This from a recent article in the Orlando Sentinel:
The fact is that eminent-domain abuse is a crucial constitutional-rights issue. . . .
Current eminent-domain horror stories in the South and elsewhere are not hard to find. At this writing, for example, the city of Clarksville, Tenn., is giving itself authority to seize more than 1,000 homes, businesses and churches and then resell much of the land to developers. Many who reside there are black, live on fixed incomes, and own well-maintained Victorian homes. At a City Council meeting earlier this month that overflowed with protesters from the neighborhood, local resident Virginia Hatcher charged that that the threat of forcing "people from their homesteads of many years" through "underhanded political manipulation" was not only "un-Christian" but had created a climate of fear.
Eminent domain has always had an outsized impact on the constitutional rights of minorities, but most of the public didn't notice until the U.S. Supreme Court's 2005 ruling in Kelo v. City of New London. In Kelo, the court endorsed the power of a local government to forcibly transfer private property to commercial interests for the purpose of "economic development." The Fifth Amendment requires that such seizures be for a "public use," but that requirement can be satisfied, the court ruled, by virtually any claim of some sort of public benefit. Many charge that Kelo gives governments a blank check to redistribute land from the poor and middle class to the wealthy.
Few protested the Kelo ruling more ardently than the National Association for the Advancement of Colored People. In an amicus brief filed in the case, it argued that "[t]he burden of eminent domain has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and economically disadvantaged." Unfettered eminent-domain authority, the NAACP concluded, is a "license for government to coerce individuals on behalf of society's strongest interests."
. . . Four years ago, the city of Alabaster, Ala., used "blight" as a pretext to take 400 acres of rural property, much of it owned by low-income blacks, for a new Wal-Mart. Many of the residents had lived there for generations, and two other Wal-Mart stores were located less than 15 miles away. Several of the land owners, particularly those who lacked political clout and legal aid, ended up selling out at a discount. . . .
(H/T Instapundit)
Friday, November 23, 2007
Interesting News From Around the Web
Cheat Seeking Missles is posting that the court case filed in France against former Sec. of Defense Don Rumsfeld, brought by the French-based International Federation of Human Rights Leagues (FIDH) and the U.S. Center for Constitutional Rights (CCR), has been dismissed by the Paris prosecutor’s office on the grounds of official immunity. The suit claimed that Rumsfeld had authorized interrogation techniques that amounted to torture.
Interestingly, the FIDH that brought suit against Rumsfeld has received a significant portion of its funding from that grand experiment in socialism, the EU. The EU regularly uses NGO’s to further their own far left social agenda. The EU have also funded, among countless others, the American Bar Association to campaign against the death penalty in America.
This is just another instance that shows that the EU and a vocal portion of Europe living in their own “irrational” world, as discussed in this piece from The Van Der Galiën Gazette. Actually, I wonder how much of that irrationality flows down to the “street” now days as opposed to the chattering classes. Everything that I read in UK suggests that there is a growing disconnect between the governed and the governing class who own the media and are making skillful use of it not so much as to stifle free speech as to drown it.
Big Lizards has an exceptional post on the Second Amendment issues and how it will impact in the political realm. It’s a very thoughtful post, though I do not share his confidence that the Court will find an individual right to bear arms. My concern is that there are too many activist judges on the Court. It was only two years ago that the activist wing of the Court rewrote the 5th Amendment in Kelo to enhance the power of government. If they can do that, they can certainly find some penumbra somewhere that will allow them to find that the Second Amendment only creates a collective right that can be wholly regulated by the states.
The Glittering Eye considers it a sure sign of the coming apocalypse that he finds himself in complete agreement with Maureen Dowd on Hillary Clinton. The Eye and Ms. Dowd both think Hillary's experience qualifies her to be President about as much as I think Obama’s foreign affairs experience qualifies him for the job. Scott Ott has documented that President Bush, in fact, has the correct slant on Hillary’s qualifications to be the Democratic nominee for President.
The Education Wonks suspects that the Bohemian San Fran’s leftist political leaders – they can be found permanently perched high atop the moral highground – might be secretly motivated by nihilism and a desire to exert ever more restrictive control over the city’s inhabitants. That might be a little bit of stating the obvious, though I am not complaining. When it comes to our neo-liberal, post modernist left, the obvious bears repeating, often and loudly.
Saturday, November 17, 2007
The Living Constitution, Private Property Rights and Eminent Domain
The Fifth Amendment to the Constitution provides in relevant part that "private property" shall not "be taken for public use, without just compensation." This clause functioned for two hundred plus years to protect private property rights in America. It provided a bright line limitation on the Government's ability to use its police power to take the private property. The Government could use the legal process of eminent domain to take private property if it was then going to put it to a "public use." A public use is something that would involve use of the property by an arm of government, such as a military installation, or a use that would open up the property to the public at large, such as a road or a park.
That all changed when the Supreme Court decided Kelo v. New London. The liberal wing of the Court prevailed and, in substance, rewrote the Fifth Amendment to the Constitution. No longer is government limited to taking private property only if it is going to put the property to a public use. It is now sufficient that the Government show that the private property will be used for a public "purpose," such as increasing the tax revenues of the government. Thus a government can now take your private property and transfer to another private property to be commercially developed so long as the Government claims that the public - i.e., the government itself - will somehow gain.
The effect of this change to the plain language of the Constitution are now just being felt. Drew Carey hosts a very good webcast showing how this decision is effecting the poor and the working class. You can see it here. And indeed, what you see in the Carey webcast is anything but an isolated instance.
There are, for all practical purposes, two approaches to constitutional interpretation, both of which were clearly evident in the Kelo deicision. The first of these is the approach of the "originalists," such as Justices Scalia and Thomas. Origninalists believe that the Constitution is a fixed instrument and that it is the duty of the courts to interpret the Constitution as and to the extent they can discern what the original drafters intended. This limits the discretion of the Court. For example, originalists do not see abortion as a constitutional right. It appears nowhere in the Constitution and its an activity wholly local in nature. Orignalist thus view abortion as beyond the power of the federal government to regulate.
At the opposite end are proponents of the "Living Constitution," such as Justices Breyer and Ginsburg. They do not feel constrained by original intent and are willing to look outside of the Constitution, to foreign law or current social mores in order to interpret the Constitution. To them, the Constitution should be given a meaning that they perceive as appropriate in the modern day - in essence, imposing their own personal belief system on America as a matter of constitutional law. For a good look at this issue, see Justice Scalia's speech on the living constitution in 2005, and here is a transcript of the debate between Justices Scalia and Breyer on the issue of using foreign law to determine the meaning of the U.S. Constitution.
Looking outside the four corners of the written Constitution and the intent of the drafters makes of the Supreme Court a supra-legislature, taking over the position of Congress and the executive to create laws rather then to interpret them in light of the Constitution. That is not the function for which the Supreme Court is designed. Besides not being assigned any legislative role in the Constitution, the Supreme Court does not have the ability of Congress to hold hearings or subpoena witness - in essence, to make findings of fact beyond whatever record lies before it. Nor does allowing the Court such leeway comport with the concept of democracy. The Supreme Court justices are not subject to the will of the people, being an unelected body with tenure for life. And Drew Carey shows us just how much of a Pandora's box the Living Constitution is.
Subscribe to:
Posts (Atom)
