Coyote Blog

Via Kevin Drum, perhaps the most ridiculous example yet of eminent domain abuse in our post-Kelo Amerika:

On May 24, the five-member township committee voted unanimously to authorize
the municipality to seize Segal's land through eminent domain and name its own
developer.

"They want to steal my land," Segal said. "What right do they have when I
intend to do the exact same thing they want to do with my property?"

.... Segal...signed a contract last week to sell his property to Centex Homes
for about $13 million, contingent upon local approval. Centex, a nationally
known developer with projects in Middlesex, Morris and Monmouth counties, would
then build 100 townhouses on Segal's property....

Florio and Capodice [the mayor and deputy mayor] said they preferred AMJM
because it is a local company.

"I've never heard of Centex," Capodice said. "They're not Union County
people."

Un-freaking-believable.  Who wants to bet that AMJM has Tony Soprano on the board, or that AMJM has made some nice donations to the township committee's various election funds. 

By the way, the post title comes from this closing remark from Drum:

Still, it smells pretty bad, and it couldn't have happened if Kelo had
gone the other way. Libertarians should feel free to feel vindicated.

Missed this Gem:  Sorry, the contributions revelation is right up front:

On May 21, Albert G. Mauti Jr. and his cousin Joseph [owners of AMJM] hosted a fundraiser for
Assemblyman Joseph Cryan at the Westmount Country Club in Passaic County. The
two developers and family members picked up the $10,400 dinner tab, donated
another $8,000 and raised more than $70,000 that night for the powerful Union
County Democrat, according to state election records.

Three days later, the governing body in Cryan's hometown of Union Township --
all Democrats -- introduced an ordinance paving the way for the Mautis to build
90 or so townhouses on six acres of abandoned industrial land along the Conrail
line in town.

Via Instapundit comes the separation of powers is slowly starting to work, with the Senate starting to reign in the Administration:

In a break with the White House, the Republican-controlled Senate
overwhelmingly approved a measure Wednesday that would set standards for the
military's treatment of detainees, a response to the Abu Ghraib scandal and
other allegations that U.S. soldiers have abused prisoners.

Sen. John McCain, R-Ariz., a victim of torture while a prisoner during the
Vietnam War, won approval of the measure that would make interrogation
techniques outlined in the Army Field Manual the standard for handling
detainees in Defense Department custody and prohibit "cruel, inhuman or
degrading" treatment of U.S.-held prisoners.

Its good to see Congress getting off its butt and seeing it stop relying on the Supreme Court to deal with these issues.  I thought this was overdue a while back when I posted this.

Of course GWB, who is the only president in history to go 5 years without vetoing anything, is threatening a veto of this sensible regulation:

The White House has threatened to veto the $440 billion military spending
bill to which the measure was attached, and Vice President Dick Cheney has
lobbied to defeat the detainee measure. White House spokesman Scott McClellan
objected that the measure would "limit the president's ability as
commander-in-chief to effectively carry out the war on terrorism."

Uh, how?  Glenn Reynolds responds:

This resistance seems to me to be a mistake. First -- as Lamar
Alexander noted on the Senate floor, in a passage I heard on NPR
earlier this morning -- it is very much the Congress's responsibility
to make decisions like this; the President might do so in the first
instance, but we've been at war for more than four years and Congress
is actually doing its job late, not jumping in to interfere. If the
White House thinks that the Senate's approach is substantively wrong,
it should say so, but presenting it as simply an interference with the
President's Commander-in-Chief powers is wrong. Congress is entitled,
and in fact obligated, to set standards of this sort. It's probably
also better politically for the White House, since once the legislation
is in place complaints about what happened before look a bit ex post facto.

Perhaps current practices are producing a treasure trove of
intelligence that this bill would stop, but I doubt that -- and if I'm
wrong, the Administration should make that case to Congress, not stand
on executive prerogatives. And this bill seems to be just what I was calling for
way back when -- a sensible look at the subject by responsible people,
freed of the screeching partisanship that has marked much of the
discussion in the punditsphere. That should be rewarded, not blown off.

A Bush veto of this measure is likely to touch off the perfect political storm within his own party.  This would make the trifecta of alienation from the more sober parts of the Republican Party, following on his profligate spending tendencies as revealed post-Katrina and his cronyism as reveled first at FEMA and now with his recent Supreme Court nomination.

I fear that this administration has effectively reenacted the much-hated Alien and Sedition Acts of the early 19th century.  Using the "war" on terror as its excuse, the Bush administration is rapidly expanding its ability to grab and hold people indefinitely without charge or trial.  This is not a huge surprise -- many presidents have tried to do similar things in time of war or in reaction to internal security threats.  Much of the Patriot Act was originally proposed by Bill Clinton, after all.

What is new is that the courts and the opposition party are letting him get away with it.

The Sept. 9 court ruling concerning Jose Padilla, an
American citizen locked up in a military prison in South Carolina for
three years, is a case in point. The ruling should send shockwaves
through the American public since the decision seriously undermines
constitutional rights.

A federal appellate court ruled that constitutional rules
that apply to the police do not apply to military personnel.... The federal
government has been given a green light to deprive Americans of their
rights to due process. No arrest warrants. No trial. No access to the
civilian court system. You may not be able to see it on television, but
this court decision is the equivalent of a legal hurricane-and it is no
exaggeration to say that this is a level 5 storm with respect to its
potential havoc for civil liberties.

Federal agents arrested Padilla at O'Hare International
Airport in Chicago just after he arrived on a flight from Pakistan. The
feds claim that Padilla fought against U.S. troops in Afghanistan,
escaped to Pakistan and returned to the United States to perpetrate
acts of terrorism for al-Queda. Instead of prosecuting Padilla for
treason and other crimes, President Bush declared Padilla an "enemy
combatant" and ordered that he be held incommunicado and interrogated
by military and intelligence personnel.
Padilla has not yet had an opportunity to tell his side of
the story. For two years the government would not even permit Padilla
to meet with his court-appointed attorney, Donna Newman. Newman has
nevertheless defended Padilla's rights, arguing that the president does
not have the power to imprison Americans without trials.

Bush has not made any dramatic televised address to the
country to explain his administration's attempt to suspend habeas
corpus and the Bill of Rights, but his lawyers have been quietly
pushing a sweeping theory of executive branch power in legal briefs
before our courts.

I actually am fairly radical on this - I don't think the fact that he is a citizen or not should even make a difference.  Citizenship does not confer rights, and governments don't hand them out -- rights are ours based on the fact of our existence.   While some of the rules of due process may change for non-citizens, just the fact that they are from a different country doesn't give us the right to lock them in a room indefinitely.  This is why I support free and open immigration - there is no reason why a person born in Mexico should have fewer rights to contract with me for a job or a home than an American citizen.  The right to associate, to contract, to agree on wages, to buy a particular home, all flow from being human, not from the US government.

So I wouldn't support Padilla's treatment if he was a Iranian citizen and I certainly don't support it for an American.  Yeah, I know, he may be a bad person.  But we let bad, dangerous people out of jail every day.  Our legal system is structured based on the premise that it is worse to lock an innocent person away than let a guilty person go free.  Its a trade-off that we have made for hundreds of years and I for one am pretty comfortable with.

I also get the argument that we are at war -- in Iraq.  If someone is captured in Iraq, that may be another story.  But Chicago is not in the war zone, by any historic definition of that term (unless you want to use WWII Japanese internment as a precedent, which I doubt).  Just calling it a "war on terror" does not make Chicago a war zone any more than declaring a "war on drugs" makes Miami a war zone where suspected drug users can be put in jail without trial.  Perhaps if Bush could get Congress to officially declare war, he might have firmer legal footing, but I don't think that's going to happen.  As I wrote here:

Yes, I know that there is a real risk, in fact a certainty, that
dangerous people will be let out on the street.  But that is the bias
of our entire legal system - the "beyond a reasonable doubt" standard
and other protections of the accused routinely put bad people back on
the street.  We live with that, because we would rather err in putting
bad people back on the street than in putting good people behind bars
for life.  Give them a trial, deport them, or let them go.  Heck,
airdrop them into Paris for all I care, but you have to let them get
due process or go free.

Sure, terrorists are using our free and open society against us, and its frustrating.  But what's the alternative?  I just don't think there is a viable alternative which says that we should destroy our open society in order to save it.  We've got to learn to be smart enough to work within the rules, and it may be that we have to expect that in the future our freedom comes at some statistical increase in the danger to ourselves (by the way, isn't that exactly the trade-off we have enforced on Iraq, without even asking them -- citizens are much freer that under Saddam but at  an increased risk of terrorism?).

By the way - where the hell is Congress?  Stop grandstanding in confirmation hearings and get to work reigning this stuff in.

In the first of what promises to be the first of a number of lawsuits against 527 groups under the horrendous McCain-Feingold act, the Federal Election Committee is suing the Club for Growth for its television adds in 2000 and 2002.  Essentially, the FEC is attempting to declare the Club for Growth to be under the control of and an arm of the Republican Party, and therefore subject to McCain-Feingold spending and donation limitations. 

This is absurd.  First, current election law and McCain-Feingold are a brazen assault on the first amendment, and shouldn't apply to anyone.  Second, to the extent that they are allowed to be applied to the two major political parties, their reach should be limited as much as possible to allow private citizens full freedom of political speech.

While the Club for Growth often supports Republicans over Democrats, browsing their web site makes it clear that they are by no means a shill for the Republican party.  They are strong supporters of reduced regulation and taxes, and have been just as hard on Republicans of late when Bush, Delay and Company have apparently abandoned these goals.  I have supported The Club for Growth for years and I am by no means a Republican.

Several lefty blogs have gleefully piled on because they don't like the Club for Growth.  This is very very shortsighted.  My sense is that the case against CfG is no better or worse than the case they can have against MoveOn or Soros or whatever.  The CfG suit may well be a Trojan Horse first case to immunize the Bush Administration and the FEC against charges that they are going after the President's critics.  Once immunized, under this theory, lefty organizations will be next. 

Bloggers represent one of the strongest and most vocal constituencies for freedom of speech -- we should be united in opposing this kind of action, whoever it is against.

Update:  More from Reason's Hit and Run

After the Supreme Court's Kelo decision that effectively increases the power of local authorities to take whatever poperty they want and hand it over the private developers, a number of outraged politicians began reform efforts to limit takings in their state to true common-carrier public projects.  So what has happened to these efforts?  Virginia Postrel links to this update on California, but I will give you a hint:  They have had about the same level of success that every other effort to limit government power has had of late.

Predictably, local government and redevelopment officials reacted with alarm
that eminent domain could be severely restricted. The California Redevelopment
Association and other advocates geared up to kill the measures and in the
closing days of the legislative session, Democratic leaders ginned up a strategy
to cool off the anti-eminent domain fervor. They unveiled legislation that would
place a two-year moratorium on the seizure of private homes (but not commercial
property), and authorize a study of the practice, thus giving their members a
chance, or so it seemed, to side with the anti-eminent domain sentiment without
doing any real damage to redevelopment agencies.

Quietly, however, the moratorium bills were themselves put on the shelf as
the session ended - with Democrats blaming Republicans. "With every vote, they
tried to derail this prudent response," said Sen. Christine Kehoe, D-San Diego,
who carried one of the moratorium bills.

Kehoe's finger-pointing, however, was more than a little disingenuous since
the stalled bills required only simple majority votes and thus needed no
Republicans to go along. Clearly, this was a Democratic action, not a Republican
one, perhaps just a feint to pretend to do something about eminent domain
without actually doing anything to upset the apple cart.

She also points to this story in San Diego:

First came a report on the San Diego Model School Development Agency's push to
seize and demolish 188 homes in the thriving City Heights neighborhood to build
up to 509 town houses, condos and apartments more to its liking. The 30-acre
site is far from the decaying neighborhood normally targeted in redevelopment,
but blithe agency bureaucrats from the Soviet school of central
planning--knowing they could call the area "blighted" if they chose--didn't
care.

Then came yesterday's jaw-dropping story about National City's plan to use
its powers of eminent domain to force the Daily family to sell a parcel the
family leases to the Mossy family for one of its thriving car dealerships. After
the two sides couldn't agree on a sales price, Mossy representatives made plain
they would move their Nissan dealership--and the $1 million in annual sales and
property taxes it generates for National City--unless the city helped close the
deal. The City Council promptly caved in to Mossy's unsavory hardball tactics
and, in its role as the city redevelopment board, began looking into seizing the
land--after a mysterious epiphany in which members suddenly realized the site
suffered from a heretofore undetected case of "visual blight."

Yep, there's nothing like another large car dealership to fight visual blight.  Maybe San Diego should tear down the Del Coronado hotel and put a car dealership there too.

Those of you who wanted a strong federal welfare-nanny-state response to New Orleans, you have got your wish:

It is impossible to over-emphasize the extent to which this area is
under government occupation, and portions of it under
government-enforced lockdown. Police cars rule the streets. They (along
with Humvees, ambulances, fire apparatus, FEMA trucks and all
official-looking SUVs) are generally not stopped at checkpoints and
roadblocks. All other vehicles are subject to long lines and snap
judgments and must PROVE they have vital business inside the vast
roped-off regions here. If we did not have the services of an off-duty
law enforcement officer, we could not do our jobs in the course of a
work day and get back in time to put together the broadcast and get on
the air.

This is not poor federal management - this is exactly-what-you-always-get federal management.  Putting a premium on control and process over results is built into their DNA.  My prediction is that those areas outside federal control and allowed to be accessible to private aid and to individuals who want to, yeah I know its crazy, come into the area and take responsibility for fixing their own house rather than waiting for the feds to do it for them will fair much better in the long run.  More on the federal urge for technocratic control here  and here and here and here.

Something about this reminds me of an observation made over and over in interviews with American soldiers from WWII.  They recounted that in German villages, after a battle, the German citizens were out in the streets, starting to clean up and rebuild before the dust had even settled, while in France, villagers would just sit forlornly in the debris and wait for someone to come do something about it.

Update:  I know you are getting tired of these stories, but here is yet another example of the FEMA folks opposing private relief efforts in the name of "control". 

Starting right after midnight I began receiving calls from FEMA, HHS,
TRANSCOM and other groups whose acronyms I still cannot explain.  LCDR
Kennedy from FEMA called to understand what I was trying to do.  I told
him.  Fifteen minutes later Mimi Riley, Deputy Director from NDMS
called to beg me in a plaintive and exhausted voice not to carry out
this mission.  She had many reasons "“ you need doctors on the plane,
Chicago is too far from their home, how will we track the patients,
this is a military operation and we were not military. 

I
explained to her that we had two doctors on the plane one of whom was a
retired Air Force Doctor who had run the military hospital in Baghdad
after the invasion.  I thought we could trust him to run an airplane of
people from New Orleans to Knoxville.  We were working with NDMS
hospitals in Tennessee and Chicago so they would have a good tracking
system.  (I guess Mimi never heard of the Great Migration of African
Americans from New Orleans and the south to Chicago after the flood of
1927 and during the Depression.  Many people from New Orleans are more
at home in Chicago than Houston. )

Mimi was unmovable.  We
were not military and that was that.  She tried to sound grateful for
our intentions but she was not going to have outsiders help.  I even
offered to GIVE her the planes and the crews and the hospitals and let
her run it through her NDMS system but she would have none of it.  She
asked me at least to delay until noon the next day and I said I would
try.

A good revamp of FEMA after this is all over would put a heavy emphasis on private action and FEMA's role in aiding rather than controlling and limiting this effort.  Unfortunately, I don't expect that to be the outcome.  I fear that large government technocrats and lefties who are always suspicious of private bottom-up action will control the agenda in framing the FEMA debate.

OOPS:  Did I say that technocrats and lefties distrusted anything but top-down federal power.  I forgot the righties as well (from dubya's speech the other day):

It is now clear that a challenge on this scale requires greater federal
authority and a broader role for the armed forces -- the institution of
our government most capable of massive logistical operations on a
moment's notice.

Sounds like Lyndon Johnson and the Great Society.  As a libertarian, I dread the next election.  Two parties competing to see who can enhance federal power more.  Blech.

Yet another:

The patients and staff at Methodist could have been evacuated before
Hurricane Katrina hit. But instead they were condemned to several days of fear
and agony by bad decision-making in Louisiana and the chaotic ineptitude of the
Federal Emergency Management Agency. Some of the patients died.

Incredibly, when the out-of-state corporate owners of the hospital responded
to the flooding by sending emergency relief supplies, they were confiscated at
the airport by FEMA and sent elsewhere.

Apparently FIRE has won another victory, this time against Double Secret Probation at Brooklyn College.

My Vioxx post below got me thinking about choices, and in particular, how we "grade" other people's choices.

My first thought on this topic is that assessing the "right" choice for an individual, when a decision affects only that one individual, can only be made by that person.  That seems like a dumb and obvious statement, but actually its fairly relevant to public policy nowadays.  Want to ride your motorcycle without a helmet?  Sorry, we think that is a bad decision and we aren't going to let you make it.   Want to reduce excruciating pain even at the risk of future heart problems?  Sorry again, can't let you do that.  Want to let Florida State continue to use your tribe's name (Seminoles) for their mascot?  Sorry, but that is degrading to you, even if you don't know it.  Want to enjoy some french fries (maybe even some Snuffers cheese fries, for those who have ever lived in Dallas) at the risk of a future heart attack - well, you can still do that, but we're working on it.  I wrote much more on this topic here.

Beyond the moral problem I have with having the government limit our ability to make decisions for ourselves, the fact is that we are generally really bad at assessing other people's choices.  I will make the analogy using blackjack.  I remember sitting at a table in Vegas and watching some woman take a hit on 18.  For those who don't know blackjack, trust me - you are always statistically reducing your odds of winning when you hit an 18.  Anyone, the woman draws a three, for a perfect 21, the dealer reaches 20, and she wins the hand.  Several people around the table said to her "great decision to take another card".  No it wasn't!  It was stupid!  It was a bad decision that, in this particular case, she was bailed out of by good fortune, but over the long haul of hitting 18's, she's going home broke.

Lets take a second example.  I buy liability insurance for my company every year.  Because I am in a public contact business, which makes us a particular target of the litigation industry, we pay nearly $100,000 a year for the policy.  Last year, we had no claims.  Does this mean that I made a bad decision buying insurance last year, because it turned out that we had no claims?  No, of course not.  It would be irresponsible in today's litigious environment to engage in unprotected business.   The insurance is a smart decision, even in years without claims.

But juries always assess choices based on the outcomes, not on the inputs the individuals involved were facing when they made the choices.  In the hands of a good litigation attorney, a jury will always find that hitting on a 12 in blackjack and drawing a king was a bad decision, even when the dealer is showing an ace and the odds say you HAVE to draw. 

Which brings us back to Vioxx.  Lets imagine ten thousand people who have excruciating pain, pain that prevents them from actively participating in and enjoying life, that choose to take Vioxx, knowing that there is a tiny risk of heart problems.  9,999 live a better life.  One man dies.  A jury eventually decides that the one man made a bad decision (since he died).  I would argue that the man who died did not make a better or worse decision than the other 9,999.  He made what he thought was a good decision, the same decision all the others made; he just happened to be the one who came out unlucky, but they all knew going in that someone in their group would probably draw the short straw.

Postscript:  Of course, no one ever thinks its going to be them who draws the short straw.  There is a famous story from WWII about a soldier being told with his company that two out of every three of them would likely die in the coming D-Day invasion.  The soldier looked to his comrade on his left, and then the man on his right, and thought "poor bastards".

I have written a number of times about the broader implications of a privacy right embodied in decisions like Roe v. Wade.  In particular, I have wondered how such a right can cover abortion decisions, but not a range of other individual decisions.  I make this argument not as someone who wants to use regulatory precedent to ban abortions, but just the opposite:  I would like to see the privacy right in Roe v. Wade broadened to invalidate more areas of government intervention in individual lives.  I have discussed the conundrum that liberals face in defending this privacy right while opposing privacy rights in other areas of individual decision making (here and here).

Well, I did something last night I should have done long ago, and I bet very few others have actually done:  I read in its entirety, including supporting and dissenting opinions.  Five years ago, I would have been cowed into silence on commenting in detail on such decisions by the legal intelligentsia, who will likely insist that as a private citizen I am not trained or experienced enough to understand what's really going on in these opinions.  To which I say today:  Take a hike.  The US Constitution is successful, and the European one is not, in no small part because the US Constitution fits on the back of a cereal box (rather than being 9000 pages long) and is accessible to every American. 

Anyway, reading Roe v. Wade, I was struck most by just how much careful tightrope walking the majority opinion goes through to avoid just the dilemma I mentioned above: How to grant an unlimited, unassailable right to an abortion (at least in the first trimester) with no possibility of state intervention without at the same time invalidating half the regulatory structure of the US Government, from the FDA to the DEA to the NHTSA.  In the rest of this post, I will discuss the basis the Justices claim for this distinction, which I found to be uncompelling.

The first, most interesting observation for me was that none of the judges, either in the decision or the dissent, were willing to grant a strong and/or broad privacy right.  The majority opinion uses the interesting term "zones of privacy", which immediately set off alarm bells for me since the term is so similar to the "free speech zones" term I find repugnant (the whole country should be a free speech zone, not little patches of ground with ropes around them).  Apparently, these "privacy zones" fairly narrowly include marriage, sex and procreation, children's education and pregnancy.  I can't think of any compelling reason that those decisions and interactions between two adults should be "private" while eating, smoking, taking drugs and medications, getting breast implants, negotiating a wage, wearing a seat belt, using a tanning booth, getting a tattoo, or using a motorcycle helmet are not "private". 

The key phrase the Justices use is "compelling state interest".  What I find fascinating in this decision, and really I guess in most recent Supreme Court Jurisprudence, is that that somehow the 9th amendment, which retained to the people all powers and rights not specifically enumerated for the government, has gained this modifier.  Effectively the 9th amendment has been rewritten "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people, unless some random politician can demonstrate a compelling state interest and then the government can do whatever the hell it wants".   

Rehnquist actually notes something similar in his dissent:

If the Court means by the term "privacy" no more than that the claim of
a person to be free from unwanted state regulation of consensual
transactions may be a form of "liberty" protected by the Fourteenth
Amendment, there is no doubt that similar claims have been upheld in
our earlier decisions on the basis of that liberty. I agree with the
statement of MR. JUSTICE STEWART in his concurring opinion that the
"liberty," against deprivation of which without due process the
Fourteenth
[410
U.S. 113, 173]

Amendment protects, embraces more than the rights found in the
Bill of Rights. But that liberty is not guaranteed absolutely against
deprivation, only against deprivation without due process of law. The
test traditionally applied in the area of social and economic
legislation is whether or not a law such as that challenged has a
rational relation to a valid state objective.

In some strange way, the Fourteenth Amendment, which was originally meant to add increased protection to citizens, has been turned around to justify government interventionism, just as long as some sort of "due process" has been followed.  Rather than buttress the 9th amendment, this modern interpretation of the 14th seems to gut the 9th amendment.

Just what is "a compelling state interest"?  Could there possibly be a more amorphous term, abusable term?  More importantly, who defines
it?  Remember that whoever gets to define compelling state interest becomes our de
facto ruler.  I think there is a really good reason that the framers of the Constitution did now write that "the government has all powers that there is a compelling state interest to have".  This line would have made the document a license for totalitarianism, but for some reason, our courts have basically rewritten the Constitution to read just this way. The only thing stopping us from being a totalitarian state today are judges that are willing to read "compelling state interest" narrowly.  And these judges just slow the process of creeping statism.  It only takes one decision, like Kelo, to expand the definition of state interest, and all case law afterward seem to follow this expanded view of government.  This statism is like entropy or time, a process that only proceeds in one direction, towards expansion of government power, never to its narrowing.  The Left in particular has gotten good at using the Stare Decisis concept to try to disallow revisiting any decision that expanded the scope of government (Roe v. Wade interestingly again being the one exception, since it is a limitation rather than expansion of state power).

This reading of the 9th and 14th amendment, and this concept of "valid state interest" appear to stem out of the Lochner case, which will be my next reading project.  I will try to report back next week.  However, even without reading this case, I will say that I have no patience for legal scholars who say that some bad outcome came from this case, which was based on a precedent in this case, which came out of that case, etc.  Have you ever taken a document, and copied it, and then made a copy of the copy, and then a copy of that copy, etc. for 20 or so generations?  On the 20th or so generation copy you will find spots and lines and such that were not in the original, but just appeared and then strengthened over time through generations of copying. In some cases, the original writing may be illegible. Sometimes, you have to ignore all the copying and go back to the original.  This is my position as an ordinary citizen on Supreme Court cases - at some point I get exasperated by these government powers that appear and evolve over time through generations of court cases - I just want to go back to the original (ie the Constitution) and point out that those powers are not supposed to be there.

However, you I hope see the quandary in which all this leaves abortion supporters on the left.  Much of their philosophy and political agenda rests on this notion of "a compelling state interest" in nearly every facet of human endeavor.  The left pushes constantly for expansion of government regulation into every corner of our lives.  They are trying to walk a line, a line so narrow I don't think it even exists, between there being no state interest in 16 year old girls getting abortions without their parents' knowledge or consent and there being a strong state interest in breast implants, painkillers, seat belt use, bike helmets, tobacco use, fatty foods, etc.  They somehow have to make the case that that a woman is fully able to make decisions about an abortion but is not able to make decisions, without significant government regulation and intervention, about her retirement savings, the wages she accepts for her work, her use of a tanning booth, and her choice of painkillers. I personally think she can handle all these, and more.

As a final note, it is more clear to me why abortion supporters fear a re-hearing of Roe v. Wade by the Court.  I must say that before reading the decision, I was taken in by their public comments that their fear was of conservatives reversing the decision on ideological grounds.  Having read the decision, though, their fear must be more fundamental:  Roe v. Wade in some sense stands athwart the inexorable march of government interventionism that the left generally applauds.  As such, a rehearing, however the case is decided, could only be a setback for the left:  Either Roe v. Wade is overturned, and the left is hoist on its own petard of creeping government intrusiveness, or Roe v. Wade is confirmed, and in fact is used as a precedent to strengthen the privacy right and thus provide a basis for overturning other statist regulatory infrastructure.  I am rooting for the latter.

Several times on this blog I have found myself defending "hate speech".  Not because I agreed with it, but because I am deeply concerned that the effort to label certain speech "hate speech" is part of a general campaign to limit first amendment rights.  If speech limiters are successful in establishing the principal that certain speech is so bad that it is not protected by the first amendment, then we are suddenly at the mercy of whoever is in charge of defining "bad" for our speech rights.  Universities, ironically at the forefront of the "free speech" movement of the 60's, have been at the forefront of "hostile environment" limitations on speech in this decade.

There are many such examples.  The group FIRE, which fights speech limitations on campus, has a blog and a university rating system that is a great resource.  One recent example from their files is of Mr. J. Daniel at William Patterson University in New Jersey.  A couple of facts first, and then a fantastic letter in his defense from Rutgers professor Norman Levitt.  The background:

Mr. Daniel was one addressee of a mass mailing from Prof. Scala publicizing a
film she was about to show, a documentary that presented a positive view of
lesbian relationships. Mr. Daniel, who espouses religious doctrines deploring
homosexuality, responded with a request not to be sent similar notices in the
future, along with a few brief sentences summarizing his general views. It is
notable that he did not threaten Prof. Scala directly or by implication, nor did
he deny her right to show the film. He did not publicize the exchange. He did
not use the incident to launch a campaign of ridicule or vilification against
homosexuals or anyone else. He merely counterposed his ideas to those she was
presumably promoting, in a purely private way and in response to an unsolicited
message directed to him.

What Prof. Scala actually did was engage her university president in a joint effort to censor and punish Mr. Daniel.  I have read Mr. Daniel's comments, which I don't happen to agree with.  However, the response he got to his very reasonable actions is very scary.  Prof. Levitt describes the rest:

Prof. Scala, however, seems to regard disagreement with her position as a
punishable offense. In this respect, she has embraced peculiar dogmas that have
become all too prevalent on campuses throughout the nation. These hold that
there are certain groups who, by reason of a presumed history of oppression, are
to be safeguarded from opinions that they find distressing or uncomfortable. The
rights of others to hold, or at least to express, such dissonant views are
supposedly nullified by the new-minted "right" of the protected groups to be
shielded from discomfort and distress. Both the ethic of free speech and the
constitutional guarantees that bolster it are supposedly trumped by the duty to
shield the tender sensibilities of the officially recognized victim class. If,
by chance, someone utters a sentence or two, even in the context of private
discussion, that affronts these sensibilities, terms like "harassment" and
"hostile environment" are immediately trotted out to justify retribution against
the offending speaker. In short, the assumption is that colleges and
universities have both the right and the positive duty to require students,
faculty, and employees to uphold official doctrine on these matters, if only by
silencing themselves if they happen to disagree.

Wow, I wish I could write like that.  There is much more, all on point and very well written here.

The NJ Attorney General has chimed in and said... wait for it ... that Ms. Scala is entirely in the right and that Mr. Daniel is probably guilty of harassment and discrimination under NJ law as well for expressing his opinions.

By the way, if you think that Professor Levitt was exaggerating for saying that speech is condemned merely if it hurts the feelings of someone in a protected group, here is a very typical quote from a college speech code (I just grabbed the first one I found on the FIRE site):

The Albertson College
Student Handbook's harassment policy states that "[a]ny comments or conduct
relating to a person's race, gender, religion, disability, age or ethnic
background that fail to respect the dignity and feelings of the individual are
unacceptable." The Handbook also provides that "[a]ll inappropriate behaviors
may not be specifically covered in the misconduct definitions, and students will
be held accountable for behaviors considered inconsistent with the standards and
expectations described in this handbook."

Just to prove this is not an aberration, here is another:

The Rhodes College Policy on Discrimination and Harassment states
that "[f]reedom of expression does not include the right to intentionally and
maliciously aggravate, intimidate, ridicule or humiliate another person." Now,
we at FIRE know that all too many university administrators believe this
statement to be true; this is apparent from the way speech codes are enforced on
campuses across the country. However, few colleges and universities are bold
enough to make an explicit statement about free expression that directly
contradicts U.S. Supreme Court precedent. The administrators of Rhodes College
need to read the Supreme Court's decision in , in which the Court upheld
Hustler's right to publish a parody suggesting that Jerry Falwell's first sexual
experience was a drunken tryst in an outhouse with his own mother. Parody and
satire"”which often intentionally and maliciously ridicule and humiliate their
targets"”enjoy the strongest constitutional protection.

Update:  By the way, here is the whole text of the email in question.  Don't agree with him, but I have a hard time seeing anyone threatened and certainly can't fathom kicking the guy out of school and threatening him with prosecution for it.  More evidence that the promotors of diversity don't actually want diversity.

A recent editorial in the NY Times by Stanford professor David Kennedy really has me flabbergasted. So much so that I have rewritten this post three times and still not been able to adequately communicate my horror of this editorial.   Mr. Kennedy argues that the all volunteer, non-drafted, non-coerced-service army is a huge threat to America.

But the modern military's disjunction from American society is even more
disturbing. Since the time of the ancient Greeks through the American
Revolutionary War and well into the 20th century, the obligation to bear arms
and the privileges of citizenship have been intimately linked. It was for the
sake of that link between service and a full place in society that the founders
were so invested in militias and so worried about standing armies, which Samuel
Adams warned were "always dangerous to the liberties of the people."

By the way, his words "disjunction from American society" are his coy way of saying a volunteer army is not somehow as representative of America as a draft army.  This
article, as far as I can tell, is totally and completely about the
benefits of
draft (without ever actually using the word).  He is arguing that
forced compulsory military service is somehow more democratic and more appropriate for a free society than voluntary
service.  Forgetting how stupid this is for a minute, why is the volunteer army so "disturbing" to him?   It is really hard to figure out.  He keeps saying things like "the danger is obvious" but I guess I am just stupid - I can't find a clear statement of the danger in his editorial.  The closest I get is this:

But thanks to something that policymakers and academic experts grandly call
the "revolution in military affairs," which has wedded the newest electronic and
information technologies to the destructive purposes of the second-oldest
profession, we now have an active-duty military establishment that is,
proportionate to population, about 4 percent of the size of the force that won
World War II. And today's military budget is about 4 percent of gross domestic
product, as opposed to nearly 40 percent during World War II.

The implications are deeply unsettling: history's most potent military force
can now be put into the field by a society that scarcely breaks a sweat when it
does so. We can now wage war while putting at risk very few of our sons and
daughters, none of whom is obliged to serve. Modern warfare lays no significant
burdens on the larger body of citizens in whose name war is being waged.

This is not a healthy situation. It is, among other things, a standing
invitation to the kind of military adventurism that the founders correctly
feared was the greatest danger of standing armies - a danger made manifest in
their day by the career of Napoleon Bonaparte, whom Jefferson described as
having "transferred the destinies of the republic from the civil to the military
arm."

So in other words, its bad that wars are much less costly in lives and property.  If wars are less costly, and the combatants volunteers rather than conscripts, then we as a nation are more susceptible to military adventurism.  His bio says he is a historian, but what possible historical evidence does he bring forward for this?  None.   

In fact, there is no evidence that the government is any less likely to send a non-volunteer army (e.g. Korea, Vietnam) into harms way than a volunteer army (e.g. Afghanistan, Iraq).  In fact, we may actually be starting to see, via reenlistment rates, that the volunteer army provides a useful check against unpopular wars.  The author wants to imply that we would fight fewer bad wars with a draft, non-volunteer army.  But does anyone think we could have fought the increasingly unpopular Vietnam War with a volunteer army?  Only the draft made continuation of that war possible.  So where is his argument now?

Beyond the fact that his logic does not hold together, how morally bankrupt is it to long for the day when wars were much more costly in terms of lives and property?  Oh for the good old days of the 1960's when we could watch those much higher draft army body counts on the nightly news.  My guess is that he is not actually arguing that we should go back to higher body counts, but that the bodies we do have should represent a broader cross section of America.  In other words, he wants more elite rich white bodies (but not elite rich white Stanford bodies, since he and the Stanford faculty actively oppose all sorts of military recruiting and ROTC programs on campus). 

I have zero tolerance for this kind of forced-to-be-free fascism.  I have no idea what the author's politics are, but his argument reeks of collectivism and totalitarianism.  Think I am exaggerating?  Here is how he concludes:

The life of a robust democratic society should be strenuous; it should make
demands on its citizens when they are asked to engage with issues of life and
death. The "revolution in military affairs" has made obsolete the kind of huge
army that fought World War II, but a universal duty to service - perhaps in the
form of a lottery, or of compulsory national service with military duty as one
option among several

Sorry, but in a free society, there is not universal duty to service.   There is not "link between service and a full place in society."  When someone starts arguing that you have a "duty to service" and that government should "make demands on its citizens" rather than the other way around, run the other way because they are selling totalitarianism.

Update:  This is a pretty compelling article about a volunteer army at work.  Would they really be better off with a draft?

The south gate of Muthanna army barracks in Baghdad is one of the most
frequently bombed sites in Iraq.

Suicide bombers have killed 198 people here since last year.
Almost all were potential recruits to the country's fledgling armed forces.
Another 465 have been wounded.

Body parts that had been hurled by an explosion over the 30ft
high concrete wall a week earlier were still being picked up when the second
suicide bomber struck last week.

But, in an extraordinary display of optimism, the youngsters
hopeful of being recruited into the forces still come to queue....

The young men and handful of women in the queues say they are as
keen for the private's salary of $400 a month as they are to serve their country
to rid it off insurgents.

There are others who have had friends and relatives among the
estimated 25,000 civilians killed over the past two years. Some also believe
that the only way to get an American withdrawal from Iraq is to build a secure
and substantial security force.

But all have an air of defiance, and in some of the fresh
recruits there is a hint of gratitude for just making it through the queue at
the murderous south gate, on Zawraa Road.

Postscript:  I'm not really into the patriotism finger-pointing exercises so many people are into nowadays, but if you want some of that, try conservative blogger Captains Quarters writing on this same editorial.

As a libertarian, I am generally quite content to have Congress go on a 364 day a year vacation.  Maybe they can get together once a year and declare a national asparagus day or a national DVD rental day or whatever.

However, I will say that the debate about rules for military prisoner interrogations and detentions at Gitmo have caused me to make an exception to my general Lassaiz Faire approach.  One of the reasons we struggle with these issues is that, because we are facing the relatively new situation of having our military battle with non-uniformed insurgents not associated with any particular government or military force, the rules to be applied are fuzzy or non-existent.  Without rules, the administration has been making up its own, which activists of various stripes have been challenging in court.

And what is Congress doing?  Most of Congress has spent its time shouting out support or criticism (as the case may be) of the administration, and arguing about which judges should be selected to make sure that the administrations rules are or are not struck down.   I could have sworn that Congress has the primary responsibility for creating rules for these situations, to be enforced and interpreted by the Administration and courts.  Why is it, when there are no clear rules, Congress is the only branch of the government doing nothing?

Isn't it about time that Congress stop shouting encouragement or criticism from the shore and actually wade in with some legislation on these issues?  While I certainly have never been one to accept the Gitmo torture hysteria, its certainly a reasonable role for Congress to set standards for treatment of the type of non-military prisoners we are collecting.  For example, while the rules of Habeus Corpus for such a detainee are not necessarily the same as for a prisoner in the US, there certainly need to be some rules beyond the Administration's current ridiculous position that amounts to "we can hold them at our pleasure for as long as we want".

Update:  OK, I am obviously not keeping up.  I just got emailed a couple of links to some action on this front.  Reason has this:

A handful of Republican senators would like to determine:

(i) What is the definition of an "enemy combatant" who may be
detained by the military outside the ordinary civil justice system?; (ii) What
procedural rules should be employed by military tribunals?; and (iii) Which
interrogation techniques should be authorized, and which
prohibited?

Since these are questions the Supreme Court declined
to answer in its rulings on prisoner detention, it's nice to see that other
branch of government assuming a slightly less supine position--almost as if the
Constitution established it as a counterweight against the executive and the
judiciary.

Apparently the Bush administration, which could not manage to find the veto pen when the huge expansion of the already bankrupt Medicare system was in front of them, is announcing itself ready to veto anything:

that would restrict the President's authority to
protect Americans effectively from terrorist attack and bring terrorists to
justice, the President's senior advisers would recommend that he veto the bill.

Marty Lederman has much more analysis here.  His observation:

Heaven forbid Congress should have the nerve to actually exercise its
authorities under Article I, section 8, clauses 10, 11 and 14 of the
Constitution"”which empower Congress to define and punish Offences against the
Law of Nations, to make Rules concerning Captures on Land and Water, and to make
Rules for the Government and Regulation of the land and naval Forces. For to do
so will invariably hamper the Executive's ability to keep the Nation safe from
terror.

Isn't this just a tad too much arrogation of power, even for this President?

I have argued several times in the past that banning "hate speech" has been an entry point for limitations on free speech on college campuses all over the country.  Now, it appears that the British Parliament may use it as an excuse to put restrictions on speech of all all their countrymen:

MPs gave the Racial and Religious Hatred Bill a third reading by 301 votes to 229, a majority of 72.

Shadow minister Dominic Grieve said the bill would not improve race relations.

But Minister Paul Goggins said: "I believe we need to
take on the hate mongers, whether they are terrorists or whether they
are extremists."

The bill would create a new offence of incitement to
religious hatred and would apply to comments made in public or in the
media, as well as through written material.
The plans, which have failed to make it through
Parliament twice before, cover words or behaviour intended or likely to
stir up religious hatred. Jews and Sikhs are already covered by
race-hate laws.

I can't think of anything more dangerous than placing any such restrictions on speech, especially when the standards against which speech will be judged are so ambiguous and open to interpretation.  As someone who often utters statements and supports concepts that many consider "extreme" (and here), it is very worrisome to see politicians attempting to ban "extreme" speech.

There are so many ironies in this I can hardly count them, but here is one:  The left typically are primary supporters of these prohibitions on hate speech.  Under the British law, half the management of organizations such as Planned Parenthood who often criticize the religious right and religious organizations could probably be heaved in jail.

Update:  Can't happen in the US? Check out this article on allowing native Hawaiians to secede.

Readers of this blog will know that every time I have read condemnations of Janice Rogers Brown with quotes from her that are "out of the mainstream", I have become more enamored of her. 

JRB is opposed by the left and the Democratic Party because she is a strong supporter of property rights against government intervention.  Reason has an interesting article noting that while Democrats in Congress were quick to attack her small government libertarianism, Republicans pointedly did not in turn embrace it.  First, a reminder of why Brown makes everyone nervous:

Property and contract are, for her, the lifeblood of liberty; and when, in
the late 1930s, the country and the Supreme Court began treating property
rights cavalierly, they set loose an inexorably advancing leviathan state.
To Brown, moreover, it makes no sense to treat speech and privacy rights as
sacrosanct but property rights as trivial, when the Founders viewed all
those rights as of a piece.

More striking than Brown's philosophy is her tendency to express it in
language reminiscent of Barry Goldwater in his intemperate prime. In a 2000
speech to the Federalist Society in Chicago, she said, "We no longer find
slavery abhorrent. We embrace it. We demand more. Big government is not just
the opiate of the masses. It is the opiate: the drug of choice for
multinational corporations and single moms; for regulated industries and
rugged Midwestern farmers and militant senior citizens." She spoke of the
Supreme Court's belated acquiescence to the New Deal as "the Revolution of
1937," resulting today in "a debased, debauched culture." There is much more
in this vein, and not just in her speeches. In a 2002 dissent involving a
San Francisco housing regulation, she declared that private property "is now
entirely extinct in San Francisco," replaced by "a neo-feudal regime."

And the Republic response?

Otherwise, Republicans ran away from Brown's ideas as fast as their legs
could carry them. Specter listed, approvingly, government regulations she
has upheld. Sessions: "She has ruled on hundreds of cases affirming
government regulations, for heaven's sake." Sen. Jim DeMint, (R-S.C.):
"While she would likely describe herself as a person who believes in small
government and limited regulations ... Justice Brown has voted consistently
to uphold economic, environmental, consumer, and labor regulations." Lott:
"She has consistently voted to uphold regulations in every walk of life."
You would almost think she was Walter Mondale.

It is depressing to me to think the Republican party is returning to its 1970's big-government conservative roots.

This is another in a series of my lamentations on this country not having a strong and credible opposition party.  Previously, I have derided the Democrats for not coming up with a viable foreign policy alternative, but they appear just as week on domestic policy issues.

I have made my disdain for Kelo fairly clear.  It has taken a while, but someone other than a major beneficiary of eminent domain (e.g. the NY Times, which got their new HQ building courtesy of an eminent domain condemnation) has tried to defend it.  The defender is Nancy Pelosi, and boy has it become clear why we don't have a stronger opposition party in this country.  The Democrats have chosen this mental midget as their Congressional leader?  Check out this interview, via NRO:

 

"Q: Later this
morning, many Members of the House Republican leadership, along with
John Cornyn from the Senate, are holding a news conference on eminent
domain, the decision of the Supreme Court the other day, and they are
going to offer legislation that would restrict it, prohibiting federal
funds from being used in such a manner.

Two questions: What was your reaction to the Supreme Court decision
on this topic, and what do you think about legislation to, in the minds
of opponents at least, remedy or changing it?

Ms. Pelosi: As a Member of Congress, and actually all of us and
anyone who holds a public office in our country, we take an oath of
office to uphold the Constitution of the United States. Very central to
that in that Constitution is the separation of powers. I believe that
whatever you think about a particular decision of the Supreme Court,
and I certainly have been in disagreement with them on many occasions,
it is not appropriate for the Congress to say we're going to withhold
funds for the Court because we don't like a decision.

Q: Not on the Court, withhold funds from the eminent domain purchases
that wouldn't involve public use. I apologize if I framed the question
poorly. It wouldn't be withholding federal funds from the Court, but
withhold Federal funds from eminent domain type purchases that are not
just involved in public good.

Ms. Pelosi: Again, without focusing on the actual decision, just to
say that when you withhold funds from enforcing a decision of the
Supreme Court you are, in fact, nullifying a decision of the Supreme
Court. This is in violation of the respect for separation of church --
powers in our Constitution, church and state as well. Sometimes the
Republicans have a problem with that as well. But forgive my
digression.

So the answer to your question is, I would oppose any legislation
that says we would withhold funds for the enforcement of any decision
of the Supreme Court no matter how opposed I am to that decision. And
I'm not saying that I'm opposed to this decision, I'm just saying in
general.

Q: Could you talk about this decision? What you think of it?

Ms. Pelosi: It is a decision of the Supreme Court. If Congress wants
to change it, it will require legislation of a level of a
constitutional amendment. So this is almost as if God has spoken. It's an elementary discussion now. They have made the decision.

Q: Do you think it is appropriate for municipalities to be able to use eminent domain to take land for economic development?

Ms. Pelosi: The Supreme Court has decided, knowing the particulars
of this case, that that was appropriate, and so I would support that.

(emphasis added)

This is just crazy.  I guess as a Kelo-hater, I should be happy in this case that the opposition is so weak, but my god it is a depressing revelation for the future on other issues.

In a previous post, I expressed my frustration with the argument over blogs and campaign finance rules:

These past few weeks, we have been debating whether this media
exemption from speech restrictions should be extended to bloggers.  At
first, I was in favor.  Then I was torn.
Now, I am pissed.  The more I think of it, it is insane that we are
creating a 2-tiered system of first amendment rights at all, and I
really don't care any more who is in which tier....

I
have come to the conclusion that arguing over who gets the media
exemption is like arguing about whether a Native American in 1960's
Alabama should use the white or the colored-only bathroom:  It is an
obscene discussion and is missing the whole point, that the facilities
shouldn't be segregated in the first place.

Currently, in the wake of the recent Supreme Court decision ruling against a Constitutional journalistic privilege to withhold evidence from prosecutors.  Glenn Reynolds has a nice editorial in the USA Today echoing the point that we should not:

claims of privilege turn the press into a
privileged class. If ordinary people witness a crime, they have to talk
about it. If they participate in a crime "” say, by receiving classified
documents "” they have to say where they got them. Journalists want to
be treated differently, but the First Amendment doesn't create that
sort of privilege. Nor should we.

Many people who support these privileges say
that they would be limited to "real" journalists. But who decides when
a journalist is real? If the government decides, isn't that like
licensing the press, something the First Amendment was designed to
prevent? And if journalists decide, isn't that likely to lead to a
closed-shop, guild mentality at exactly the moment when citizen
journalism by non-professionals is taking off? All sorts of people are
reporting news via Web logs and the Internet. Shouldn't they be
entitled to the same privilege?

Press freedom is for everyone, not just professionals. James Madison wrote about "freedom in the use
of the press," making clear that the First Amendment is for everyone
who publishes, not just members of the professional-media guild.

Yes!  It is ridiculous to be creating two classes of citizen.  Why should Giraldo Rivera have different or even enhanced rights over, say, Martha Stewart, who went to jail for not being forthright with investigators?  This is a very disturbing trend in this country.  Already in the last week, the Supreme Court has ruled that developers, Walmarts, and Crate & Barrells have more and different property rights than homeowners, churches, and small retail establishments.

I wrote before that I thought the definition of interstate commerce in Raich was crazy, but maybe there is an upside.  Under this ridiculously broad definition of interstate commerce (where growing marijuana in your backyard for persona consumption was called interstate commerce), couldn't a real estate development with tenants who are multi-state corporations also qualify?

To this end, Eugene Volokh writes that Congress is already considering legislation to control eminent domain for private development in the aftermath of Kelo:

Sen. Cornyn (R-TX) Proposes Limits on Eminent Domain:

Sen. Cornyn is introducing a federal bill (S. 1313, "The Protection of Homes, Small Businesses, and Private Property Act of 2005") that would bar "economic development" takings:

(a) . . .  The power of eminent domain shall be available only for public use.

(b) . . .  In this Act, the term "public use" shall not be construed to include economic development.

(c) . . . This act shall apply to (1) all exercises of eminent
domain power by the Federal Government; and (2) all exercises of
eminent domain power by State and local government through the use of
Federal funds.

Part C is in there to help it pass constitutional muster, but maybe Raich makes this unnecessary.

PS- I am mostly kidding here - I in no way want to condone Raich.

Today, on the final day of their 2006 term, the Supreme Court ruled in the Olek vs. New London case:

Washington --  The Supreme Court on Thursday ruled that
local governments may seize people's advertising space -- even
against their will -- for alternate advertisers who promote economic development or higher taxes

It
was a decision fraught with huge implications for a country with many
areas, particularly the rapidly growing urban and suburban areas,
facing countervailing pressures of government budget deficits and free speech
rights.

The 5-4 ruling represented a defeat for some Connecticut
residents whose advertisements in the local paper against recent property tax hikes were rejected by the city council in favor of ads for several pro-taxation groups.

As a result, cities have wide power to replace advertising that might favor lower taxes or oppose certain community projects with messages more in the public interest.

Local officials, not federal judges, know best in
deciding whether speech will benefit the community,
justices said.

"The city has carefully formulated an economic
development that it believes will provide appreciable benefits to the
community, including -- but by no means limited to -- new jobs and
increased tax revenue," Justice John Paul Stevens wrote for the
majority.  "We established in Kelo that local governments have broad power to seize property when that seizure serves to maximize taxation, and certainly this applies equally well to unwanted advertising that might work against maximizing tax revenues."

He was joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

At
issue was the scope of the Fifth Amendment, which allows governments to
take private property through eminent domain if the property is for "public
use."  The majority observed that using advertising space in favor, rather than against, public policy certainly qualified as "public use".

Fred Olek and several other homeowners in a
working-class neighborhood in New London, Connecticut, filed suit after
city officials announced plans to remove their newspaper advertisements opposing the upcoming ballot initiative to raise property taxes.

New London officials countered
that the tax initiative served a public purpose of boosting
economic growth that outweighed the homeowners' speech rights, even
if the area wasn't located in North Korea or Cuba.

Justice Sandra Day O'Connor, who has
been a key swing vote on many cases before the court, issued a stinging
dissent. She argued that "This makes me so mad, I could, I could... aw, forget it.  I'm retiring this year to a Pacific island anyway, so y'all are free to screw up this country as much as you want".

Justice Scalia wrote a separate dissent, making the argument that "I have no problem with government limitations on speech per se, but given the fact that 3 readers of this paper lived out of state, such powers per Raich reside with Federal and not local authorities"

Local authorities were careful to point out that Olek was fully compensated at market rates for the removed advertising.  Olek shot back that he was in no way compensated for his loss of free speech rights or participation in the democratic process.  Justices in the majority were unpersuaded by Olek's argument, however, pointing out that in Kelo, the homeowners were in no way compensated for their emotional attachment to their homes nor for their loss of the right to dispose of their property as they wished, "so there".

Today, the Supreme Court ruled 5-4 in the Kelo Decision that local officials can seize nearly anyone's private property and hand it over to their favorite developer:

The Supreme Court on Thursday ruled that
local governments may seize people's homes and businesses -- even
against their will -- for private economic dvelopment.

It
was a decision fraught with huge implications for a country with many
areas, particularly the rapidly growing urban and suburban areas,
facing countervailing pressures of development and property ownership
rights.

The 5-4 ruling represented a defeat for some Connecticut
residents whose homes are slated for destruction to make room for an
office complex. They argued that cities have no right to take their
land except for projects with a clear public use, such as roads or
schools, or to revitalize blighted areas.

As a result, cities
have wide power to bulldoze residences for projects such as shopping
malls and hotel complexes to generate tax revenue.

This is a really, really bad decision.  Most of my thoughts on this subject are here.  The Economist, quoted in that post, framed the issue well:

Put simply, cities cannot take someone's house just because they think
they can make better use of it. Otherwise, argues Scott Bullock, Mrs
Kelo's lawyer, you end up destroying private property rights
altogether. For if the sole yardstick is economic benefit, any house
can be replaced at any time by a business or shop (because they usually
produce more tax revenues). Moreover, if city governments can seize
private property by claiming a public benefit which they themselves
determine, where do they stop? If they decide it is in the public
interest to encourage locally-owned shops, what would prevent them
compulsorily closing megastores, or vice versa? This is central
planning.

Sandra O'Connor echoed these thoughts in her dissent, and made the obvious point: This is not about condemning land for the public good.  This, in effect, will be about condemning land for the benefit of those with the most political pull:

Justice Sandra Day O'Connor, who has been a key swing vote on many
cases before the court, issued a stinging dissent. She argued that
cities should not have unlimited authority to uproot families, even if
they are provided compensation, simply to accommodate wealthy
developers....

"Any
property may now be taken for the benefit of another private party, but
the fallout from this decision will not be random," O'Connor wrote.
"The beneficiaries are likely to be those citizens with
disproportionate influence and power in the political process,
including large corporations and development firms."

While Bush, sometimes rightly, gets bashed by the Left for trying to create a corporate state, it is in fact the left side of the Supreme Court that has struck the strongest blow now in that direction.  This decision in a stroke gives local authorities nearly unlimited ability to engage in Soviet-style planning of their local economy.

Find much more at SCOTUSblog here and here.

Update: Professor Bainbridge feels my pain.  Glenn Reynolds has updates here and here.  Reason's Hit and Run opines:

the majority opinion says, quoting an earlier decision, the "Court
long ago rejected any literal requirement that condemned property be
put into use for the ... public." Which is to say, they've rejected the
notion that "public use" means anything more stringent than:
"legislators want to do this." The Court's view is that any "public
purpose" will do, and such purposes apparently include increased tax
revenue. The straightforward implication is that any taking of
a private residence to hand it over to a business, or just from a poor
person to a wealthy person, will be a taking in service of a public
purpose: As a general rule, the rich pay more taxes than the poor, and
businesses pay more taxes than households.

Arguing with Signposts has a huge roundup here.  And I would love to all get behind this idea from Right Thinking:

Here's a thought: How about the GOP-controlled Congress puts the flag
desecration amendment on the back burner and gets to work on an
amendment limiting the power of the state to seize private property
from citizens?

The Left seems split on the decision.  Half are thrilled by the subjugation of property rights to government whim, while the other half are appalled that "public use" has come to be defined as maximizing property values.  It is a strange place we are in when we have lefties like Kos actively supporting a decision that allows government to take land from citizens so long as a wealthier resident replaces a poorer resident on the land, or so long as a commercial enterprise replaces a non-commercial one.

UPDATE:  Strata-Sphere has a roundup of some of the wacky things that local governments are doing with their newly-confirmed Kelo powers.

Via the AP wire:

The
House on Wednesday approved a constitutional amendment that would give
Congress the power to ban desecration of the American flag, a measure
that for the first time stands a chance of passing the Senate as well.

By a
286-130 vote - eight more than needed - House members approved the
amendment after a debate over whether such a ban would uphold or run
afoul of the Constitution's free-speech protections.

Approval
of two-thirds of the lawmakers present was required to send the bill on
to the Senate, where activists on both sides say it stands the best
chance of passage in years. If the amendment is approved in that
chamber by a two-thirds vote, it would then move to the states for
ratification.

Why is it there is so much obsession of late with freakin icons?  The Left gets bent out of shape that some books were mishandled in Cuba and the Right is back on its no flag-burning kick.  The US Flag is a piece of cloth, that has meaning to the extent that one respects what it stands for.  Legislating against burning flags will do nothing to increase respect for what the flag stands for, and in reality helps undermine those values.  No one who loves the US thinks less of our country when they see someone burning flag -- they think less of the flag-burners.

A hundred years ago, the Constitution was modified to allow income taxes, an amendment that was sold to the public as but a small, small exception to constitutional protections.  We see now what has been driven since through this small crack.  Lets not do the same with free speech - we cannot create an exception to our strong Constitutional protections of free speech.

Certainly King George III would have considered our founding fathers extremist.  But apparently, they may be considered extremist even today, at least by the left.

In my earlier post on Janice Rogers Brown, I quoted JRB saying:

"Where government moves in, community
retreats, civil society disintegrates. . . . When government advances . . .
freedom is imperiled, civilization itself [is] jeopardized."

I noted that both the NY Times and the People for the American Way use this quote to say that JRB is "extremist".  I said, in response, "I bet I could find about 20 similar quotes in the Federalist Papers or from other contributors to the US Constitution."  Of course, I was too lazy to go looking for quotes, but Gary Galles of the Mises Blog was not.  He has hunted down many examples, but I will quote his work on the JRB quote above:

Janice Rogers Brown: "Where government advances"”and it advances
relentlessly"”freedom is imperiled...When did government cease to be a necessary
evil and become a goody bag to solve our private problems?"
Thomas
Paine: "Society in every state is a blessing, but Government, even in
its best state, is but a necessary evil; in its worst state, an intolerable
one."
George Mason: "Every society, all government, and
every kind of civil compact therefore, is or ought to be, calculated for the
general good and safety of the community. Every power, every authority vested in
particular men is, or ought to be, ultimately directed at this sole end; and
whenever any power or authority whatever extends further...than is in its nature
necessary for these purposes, it may be called government, but it is in fact
oppression."
Thomas Jefferson: "˜What more is necessary to
make us a happy and a prosperous people?...a wise and frugal Government, which
shall restrain men from injuring one another, shall leave them otherwise free to
regulate their own pursuits of industry and improvement, and shall not take from
the mouth of labor the bread it has earned. This is the sum of good
government..."

Go read them all.  And remember, he is taking all the JRB quotes right off the People for the American Way site, who have posted the quotes to scare us about what an extremist she is.

Per the Washington Post:

But Democrats recited a litany of Brown's controversial statements, including
several from a 2000 speech titled "Fifty Ways to Lose Your Freedom." She said
senior citizens "blithely cannibalize their grandchildren because they have a
right to get as much 'free' stuff as the political system will permit them to
extract." Elsewhere, Brown has said: "Where government moves in, community
retreats, civil society disintegrates. . . . When government advances . . .
freedom is imperiled, civilization itself [is] jeopardized."

Sen. Joseph R. Biden Jr. (D-Del.) told reporters that Brown is "one of
the most extreme nominees that has ever come before the United States Senate in
the 32 years I've been a senator."

OK, so I am an extremist.  Take in particular the last quote from Brown - I bet I could find about 20 similar quotes in the Federalist Papers or from other contributors to the US Constitution.  That quote should be over the front door of the ACLU.  This is the second time I have read statements about her that were intended to scare me off but in fact endeared me to her. The first example was here.

Update:  People for the American Way have other JRB comments that are supposed to scare me, but don't.  Here is an example of what scares PFTAW:

In the New Deal/Great Society era, a rule that was the polar opposite of the
classical era of American law reigned...Protection of property was a major
casualty of the Revolution of 1937"¦Rights were reordered and property acquired a
second class status...It thus became government's job not to protect property
but, rather, to regulate and redistribute it. And, the epic proportions of the
disaster which has befallen millions of people during the ensuing decades has
not altered our fervent commitment to statism.

I am starting to wish she was running for office, so I could vote for her.  Reason has similar thoughts here.

Update #2:  Reason has a profile of her here.  Many more great quotes from her, including this gem:

In a dissent in San Remo Hotel v. City and County of San Francisco
(2002), which upheld the city's sweeping property restrictions, Justice Brown
expanded on that theme. "Theft is still theft even when the government approves
of the thievery," she declared. "The right to express one's individuality and
essential human dignity through the free use of property is just as important as
the right to do so through speech, the press, or the free exercise of religion."

Go Janice, go.

Every Memorial Day, I am assaulted with various quotes from people thanking the military for fighting and dying for our right to vote.  I would bet that a depressing number of people in this country, when asked what their most important freedom was, or what made America great, would answer "the right to vote."

Now, don't get me wrong, the right to vote in a representative democracy is great and has proven a moderately effective (but not perfect) check on creeping statism.  A democracy, however, in and of itself can still be tyrannical.  After all, Hitler was voted into power in Germany, and without checks, majorities in a democracy would be free to vote away anything it wanted from the minority - their property, their liberty, even their life.   Even in the US, majorities vote to curtail the rights of minorities all the time, even when those minorities are not impinging on anyone else.  In the US today, 51% of the population have voted to take money and property of the other 49%.

In my mind, there are at least three founding principles of the United States that are far more important than the right to vote:

• The Rule of Law. For about 99% of human history, political power has been exercised at the unchecked capricious whim of a few individuals.  The great innovation of western countries like the US, and before it England and the Netherlands, has been to subjugate the power of individuals to the rule of law.  Criminal justice, adjudication of disputes, contracts, etc. all operate based on a set of laws known to all in advance.

Today the rule of law actually faces a number of threats in this country.  One of the most important aspects of the rule of law is that legality (and illegality) can be objectively determined in a repeatable
manner from written and well-understood rules.  Unfortunately, the massive regulatory and tax code structure in this country have created a set of rules that are subject to change and interpretation constantly at the whim of the regulatory body.  Every day, hundreds of people and companies find themselves facing penalties due to an arbitrary interpretation of obscure regulations (examples I have seen personally here).

• Sanctity and Protection of Individual Rights.  Laws, though, can be changed.  In a democracy, with a strong rule of law, we could still legally pass a law that said, say, that no one is allowed to criticize or hurt the feelings of a white person.  What prevents such laws from getting passed (except at major universities) is a protection of freedom of speech, or, more broadly, a recognition that individuals have certain rights that no law or vote may take away.  These rights are typically outlined in a Constitution, but are not worth the paper they are written on unless a society has the desire and will, not to mention the political processes in place, to protect these rights and make the Constitution real.

Today, even in the US, we do a pretty mixed job of protecting individual rights, strongly protecting some (like free speech) while letting others, such as property rights or freedom of association, slide.

• Government is our servant.  The central, really very new concept on which this country was founded is that an individual's rights do not flow from government, but are inherent to man.  That government in fact only makes sense to the extent that it is our servant in the defense of our rights, rather than as the vessel from which these rights grudgingly flow.

Statists of all stripes have tried to challenge this assumption over the last 100 years.   While their exact details have varied, every statist has tried to create some larger entity to which the individual should be subjugated:  the Proletariat, the common good, God, the master race.  They all hold in common that the government's job is to sacrifice one group to another.  A common approach among modern statists is to create a myriad of new non-rights to dilute and replace our fundamental rights as individuals.  These new non-rights, such as the "right" to health care, a job, education, or even recreation, for god sakes, are meaningless in a free society, as they can't exist unless one
person is harnessed involuntarily to provide them to another person.
These non-rights are the exact opposite of freedom, and in fact require
enslavement and sacrifice of one group to another.

Don't believe that this is what statists are working for? The other day I saw this quote from the increasingly insane Lou Dobbs (Did you ever suspect that Lou got pulled into a room a while back by some strange power broker as did Howard Beale in Network?):

Our population explosion not only detracts from our quality of life but threatens our liberties and freedom as well. As Cornell's Pimentel puts it, "Back when we had, say, 100 million people in the U.S., when I voted, I was one of 100 million people. Today, I am one of 285 million people, so my vote and impact decreases with the increase in the population." Pimentel adds, "So our freedoms also go down the drain."

What??

In a society with a rule of law protecting individual rights, how does having a diluted vote reduce your freedom?  The only way it does, and therefore what must be in the author's head, is if one looks at government as a statist tug of war, with various parties jockeying for a majority so they can plunder the minority.  But in this case, freedom and rule of law are already dead, so what does a dilution of vote matter?  He is arguing that dilution of political power reduces freedom -- this country was rightly founded on just the opposite notion, that freedom requires a dilution of political power.

At the end of the day, our freedoms in this country will only last so long as we as a nation continue to hold to the principle that our rights as individuals are our own, and the government's job is to protect them, not to ration them.  Without this common belief, all the other institutions we have discussed, from voting to the rule of law to the Constitution, can be subverted in time.

So to America's soldiers, thank you.  Thank you for protecting this fragile and historically unique notion that men and women own themselves and their lives.

In my post on "Respecting Individual Decision-Making",  which to-date I consider my favorite post, I wrote:

As a capitalist and believer in individual rights, one of the things
I notice a lot today is just how many people do not trust individual
decision-making.  Now, I do not mean that they criticize other people's
decisions or disagree with them -- in a free society, you can disagree
with anybody about anything.  I mean that they distrust other people's
free, private decision-making so much that they want the government to
intervene.

Interestingly, most people don't think of themselves as advocating
government interference with people's private decisions.  However, if
you ask them the right questions, you will find that they tend to fall
into one of several categories that all want the government to
intervene in individual decision-making in some way:  nannies,
moralists, technocrats, and progressive/socialists.  Though the
categories tend to overlap, they are useful in thinking about some of
the reasons people want to call in the government to take over parts of
people's lives.

I then spent a lot of time with examples from each category.  On Sunday, Keith Thompson in the San Francisco Chronicle (of all places) wrote an article about his disaffection with the left, which said in part:

A certain
misplaced loyalty kept me from grasping that a view of individuals as morally
capable of and responsible for making the principle decisions that shape their
lives is decisively at odds with the contemporary left's entrance-level view
of people as passive and helpless victims of powerful external forces, hence
political wards who require the continuous shepherding of caretaker elites.

I'm not sure that he and I are in exactly the same place, but we are both looking for allies who are consistent in their defense of classical liberal values and individual rights.

In a related post, Mickey Kaus, who I seldom read because he spends more time than I care on inside-the-beltway political tactics and media stuff, has an interesting related post about the left and trusting people to do right by their own lives.  Kaus resists permalinks, but the gist is:

Two good critiques of the ubiquitous, left-pleasing menace, George Lakoff--by Marc Cooper and Noam Scheiber. Oddly, neither attacks Lakoff at what would seem to be his central weak point, namely his conflation of politics and parenting--identifying "conservative" values with "the strict father" and "liberal" values with the "nurturant parent."

Is a country really like a family? Isn't that an idea with a ... checkered
history? A family is a relationship between inherently unequal,
not-completely-free people--parents and children. A country, at least
in one American conception, is the relationship of equal, autonomous
people. Using the family as the template for politics stacks the deck against social equality (the value I'd suggest as the liberal touchstone). For one thing, it lends itself all too easily to the condescending liberal notion of compassion,
an anti-populist idea if there ever was one. It's also horribly
misleading as a guide to practical policies--no wonder that when
Scheiber asks Lakoff about President Clinton's welfare reform, Lakoff
responds "Why did he have to do that? ... I still don't understand it
fully." In Lakoff's mind, Clinton wasn't changing the welfare system,
he was beating his family's children! Aren't there values that aren't
family values?

A good example of that in recent debate has been social security.  As I argued before:

Advocates for keeping forced savings programs like Social Security in
place as-is by necessity argue that the average American is too stupid,
too short-sighted, and/or too lazy to save for retirement without the
government forcing them.  Basically the argument is that we
are smarter than you, and we are going to take control of aspects of
your life that we think we can manage better than you can.  You are
too stupid to save for retirement, too stupid to stop eating fatty
foods, too stupid to wear a seat belt, and/or too stupid to accept
employment on the right terms -- so we will take control of these
decisions for you, whether you like it or not.  For lack of a better
word, I call this intellectual welfare.

Given these fairly accurate descriptions of the state of liberalism in America, it is ironic that several weeks ago, Kevin Drum made the following observation:

Whenever I talk about the underlying principles that should guide liberals, as
I did a couple of days ago, one of the ideas that always pops up is privacy
rights. In fact, it comes up so often that it strikes me that we're missing a
bet by not making a bigger deal out of it.

The reason, Mr. Drum, is that a true privacy right defined as you are considering it (in particular, one defined broadly enough to give women an absolute right to abortion) would undermine much of the left's statist agenda.   A true privacy right would force the government to respect individual free decision-making, and require that the government allow individuals to make what elites might consider are bad decisions for themselves. 

Does the Left really want broad privacy rights, or just a constitutional justification for abortion?  If they really want a general primacy of a woman's decision-making over their bodies, why do they support abortion yet oppose letting women choose breast augmentation or the use of Vioxx?  Why do the same leftist politicians that oppose parental approval or even notification for teenage abortion simultaneously support requiring parental permissions for teenagers to use tanning salons?  Why do they resist random searches for terrorists but support such searches to enforce seat belt laws?

As I wrote here,

A true privacy right would allow us complete freedom over who we sleep
with, what we do with our bodies, where we work, and what we pay for
goods.  And, not incidentally, how we choose to invest for our
retirement.  Both parties want the government to control parts of our
lives, so don't expect either Conservatives or liberals to be pushing
the privacy issue very hard.

The government is not our parent, not our boss, not our priest, and not our partner.  It is our servant.  Unfortunately, a large element behind creeping statism in this country is a desire by both left and right to "correct" individual decision-making, even when those decisions affect no one but the actor himself.

I have always been amazed that so many civil libertarians have embraced multi-culturalism.  To be a good civil libertarian, you have to be willing to defend a certain set of principles about individual rights ruthlessly against all intrusion.  But to be a multi-culturalist, you have to be willing to accept values and behaviors that are wildly out of sync with western liberalism as equally "OK".  These two never seemed reconcilable to me -- civil libertarians pursue moral absolutes, while multi-culturalism preaches that there are no absolutes.

Those on the left who have tried to embrace both civil liberties and multi-culturalism have sometimes had to bend themselves into pretzels to try to reconcile these beliefs.  Today we have the unbelievable spectacle of the same people accusing the US of becoming a theocracy because it is slow to embrace gay marriage at the same time defending radical Muslim groups who would kill gays on sight.  We can watch people go ballistic decrying naked human pyramids as "torture" but still defend Saddam and his Baathists as freedom fighters despite the hundreds of thousands they put into mass graves.  And we can observe that the same people who are trying to invalidate judge candidates because they went to prayer breakfasts are calling flushing a Koran down the toilet "torture".

I suspect, though, that the highly illiberal teachings of the Muslim religion may finally be forcing the left to recognize the incompatibilities of their civil libertarianism and their belief in cultural moral equivalence.  This is the theme of a great new piece by Cathy Young in Reason:

The tension between two pillars of the modern left"”multiculturalism and
progressive views on gender"”is not new. It has been particularly thorny
in many European countries where, in lieu of an American-style "melting pot"
approach, immigrants have been traditionally encouraged to maintain their
distinct values and ways. Recently, however, these tensions have started to
come out into the open. According to a
March article
in the German magazine, Der Spiegel, the murder of Dutch filmmaker
Theo Van Gogh by an Islamic extremist last November after he had made a
documentary about the oppression of Muslim women "galvanized the Netherlands
and sent shock waves across Europe."...

Misogyny and gay-bashing"”religiously motivated or not"”still exist
in Western societies as well, though at least they are widely condemned by
the mainstream culture. We should be able to say, loud and clear, that the
modern values of individual rights, equality, and tolerance are
better"”and just say no to multiculturalist excuses for bigotry.

Some good news on this topic, Kuwait has extended women the right to vote.