30 January 2008

Constitution #2: The Takings Clause

The Objectivist
Dunkirk-Fredonia Observer
Monday, January 28, 2008

In the Hall of Shame, few Supreme Court cases are more distinguished than Kelo v. New London, 545 U.S. ____ (2005). In it, the Court held that the government could take a citizen’s land, house, business, or farm and give it to another so long as the latter would likely pay more taxes, create a handful of new jobs, or do any number of other things the crass legislators want done.

In 2000, the city of New London, Connecticut approved a development plan that was projected to create jobs, increase tax revenues, and revitalize an economically distressed city. Some portions of forcibly taken land were to be transferred to a pharmaceutical mega-company, Pfizer. Other portions would be used for a waterfront hotel that would include restaurants, stores, a museum, and a parking lot. The unwilling sellers would then be given just compensation. In putting together the portions, the city authorized a private development group to purchase land from willing sellers and use eminent domain (forcible taking) to take it from unwilling ones. Members of this development group were privately chosen and thus unaccountable to voters.

Among the unwilling sellers was Wilhelmina Dery, who lived in a house that had been in her family for over 100 years. She was born in it in 1918 and her husband had moved into it when they married in 1946. Their son lived next door with his family in the house his parents gave him as a wedding gift. Another litigant, Susette Kelo, made extensive improvements in her house and prized it for her water view. The private agency had decided that these houses would be transferred to Pfizer or used for a parking lot or other support for the new village.

These homeowners pointed out that the Constitution prohibits such actions. The Fifth Amendment provides “[N]or shall private property be taken for public use, without just compensation.” This generally has been taken to put forth two conditions on government taking of property.
1. The government may take property from an unwilling owner only if it is for a public use.
2. The government may take property from an unwilling owner only if it provides just compensation.
Unwilling owners like Dery and Kelo claimed that because their property was to be given to other private parties, it was not for public use.

Traditionally, the public-use requirement for a taking has been limited to three areas. First, takings were allowed when private property was transferred to the government and used for things like roads, hospitals, or military bases. Second, takings were allowed when the government gave the property to private parties who then made the property available to the public. Examples included common carriers (for example, railroads). Third, takings were allowed to prevent harm. One example of this was a Washington, D.C. neighborhood that was so blighted that it threatened the community’s health and safety. The New London case did not fit into these categories.

In a five-to-four decision, Justice Stevens, writing for the majority, argued that the phrase “public use” should be interpreted as “public purpose.” The Court’s arguments rested solely on previous cases. It gave particular emphasis to two recent cases, one involving blighted land [Berman v Parker, 348 U.S. 26 (1954)] and an odd one in Hawaii in which a few landowners owned almost all the private land, which distorted the housing market [Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)]. Stevens reasoned that because promoting economic development was a public purpose, the city was free to forcibly take the individuals’ lands and houses and give it to those who would put it to better use. Stevens and his gang of four then said that the Court would defer to the legislature in deciding what counts as a public purpose, when a plan promoted it, and whether particular taking was part of the plan.

Justice Thomas (a man among boys) dismembered Stevens’s argument. Stevens argued that “to use” should be interpreted broadly to mean “to have a beneficial purpose.” First, Thomas pointed out that dictionaries at the time the Fifth Amendment was written and passed interpreted “to use” in a narrow sense to mean “to employ,” “to avail one’s self of,” and “to enjoy,” etc. Thomas pointed out that when the government takes property and gives it to another individual so the latter can pay more taxes, it strains the language to say the public is employing the property, availing themselves of it, or enjoying it. Second, Thomas noted that in two other places (Article I Sections 8 and 10) the Constitution mentions “use” and applies the narrower interpretation. Third, he argued that if those who framed and ratified the Constitution had meant by “public use,” “public purpose,” they likely would have used the “general Welfare” phrase found elsewhere in the Constitution. Fourth, he pointed out that the narrower interpretation fits with the common law and the early cases of government taking people’s property.

Thomas and Justice O’Connor (in a separate dissent) point out the deference given to the legislature is shocking because it makes it nearly impossible for someone to block a government taking. This is because the Court made it crystal clear that it will not evaluate any aspect of a government taking that could be reasonably challenged.

In essence, then, the Court decided that any private property may now be taken and transferred to another owner who will use it in a way that the government deems preferable. The greater benefit might consist in such things as paying slightly more taxes or making aesthetic improvements. The majority’s conclusion clashed with the language of the Constitution and the intent of those who wrote it and voted for it. The deferential treatment ensures that the government’s inevitable claim that transferring property to a new owner will benefit the public will be petty much automatically accepted.

After this decision, it is clear that a fundamental right, the right to property, will not prevent the government from taking someone’s property. This has and will protect the government’s forcible taking of homes, farms, motels, dollar stores, and poorer racial and ethnic communities and handing these over to wealthy corporations and land developers. Justice Stevens and gang of four (Ginsburg, Souter, Breyer, and Kennedy) elsewhere succeeded in making a mockery out of the Commerce Clause and deleting the Tenth Amendment. They are a judicial cancer that is slowly eating away at this country’s innards.

21 January 2008

On the Two-Party Duopoly in U.S. Politics

Over at Mostly Harmless, I just wondered aloud about the possibility of an Obama/McCain run as Independents for the Executive Office (if they end up #2 to Clinton and Romney in their parties' primaries). The question I want to pose to my co-bloggers here--and anyone else who wants to weigh in--is whether such a campaign would represent the best chance in our lifetimes to really shake up the two-party duopoly in U.S. politics. I wonder how many left Democrats like me would be torn between the following options and what we would decide:

  • holding our noses at another Clinton presidency while working to increase the number and influence of liberals, progressives, and radicals at all other levels within the Democratic Party, which would mean accepting the exclusion of Obama along the lines of Nader and Lieberman;

  • holding our noses at Obama's tactical alliance with McCain in hopes that it fatally wounds the Republican Party, forces the Democratic Party to redefine itself, brings new voters into the political process, redefines "centrism" and "bipartisanship" in American politics, moves the electorate and terms of debate in the U.S. a little bit leftward in the short run and a lot more in the medium run, breathes new life into both "third parties" and more rational forms and means of voting, makes U.S politics more diverse, competitive, and unpredictable, while basically being what Zizek would call a "vanishing mediator," a short-term catalyst for more fundamental changes (rather than, say, the opportunity to make Unity '08 into a real political movement);

  • actively supporting Obama's candidacy in hopes that in doing so we can build a new party apparatus that in the long run can become a real political home for us.

Of course, different possibilities and risks would be raised for and by moderate Republicans, libertarians, and greens, to name a few, by an Obama/McCain Independent run. What do you all think?

16 January 2008

Constitution #1: The Commerce Clause

The Objectivist
Dunkirk-Fredonia Observer
January 14, 2008

Perhaps the most significant political event in the recent decade was a little noticed Supreme Court case, Gonzales v. Raich, 545 U.S. 1 (2005), that ratified the Depression-era rewriting of the U.S. Constitution. In 1996, California voters passed Proposition 215, which permitted seriously ill patients to use medical marijuana when they had a physician’s recommendation. At the federal level, however, marijuana was illegal under the 1970 Controlled Substances Act (CSA). The CSA made it a Schedule I drug, which resulted in a ban on its manufacture, distribution, and possession. Congress did so on the basis that marijuana had a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.

As a side note, the Congressional finding conflicts with that of a number of respected medical groups, such as the British Medical Association, which have backed the medical use of marijuana.

This case involved Angel Raich and Diane Monson of California who suffered from a variety of painful and debilitating medical conditions and used medical marijuana to alleviate their suffering. The federal government conceded that both used the drug as medication for several years, did so pursuant to their doctors’ recommendations, and relied on it to function on a daily basis. Raich’s physician claimed that if she stopped using marijuana, she would suffer excruciating pain and might die. Their use was legal under California law. Raich and Monson sued to stop the federal government interfering with their use of it.

At issue was whether under the Constitution the federal government had the power to prohibit the intrastate (within one state) production and use of medical marijuana. To see the Constitutional issue, consider the structure of the Constitution. The Constitution limits federal powers to those listed in Article I Section 8 of the Constitution. The principal author of the Constitution, James Madison, acknowledged this when he stated that the powers delegated to the federal government are few and clearly defined (Federalist Papers 45). The only section of Section 8 that even comes close to authorizing federal power over medical marijuana is the Commerce Clause. This clause states that “The Congress shall have power … To regulate commerce with foreign nations, and among the several States … .” This structure is bolstered by the Tenth Amendment, which requires that the states and the people have all powers not delegated to the federal government. Under the Constitution, then, the federal government’s powers are few, specifically laid out, and in this context limited to interstate commerce.

The problem is that this case involved purely intrastate and non-commercial activity. The marijuana was produced and consumed solely within California and was not bought, sold, or traded. As a result, federal control over it conflicts with the language, structure, and original intent of the Constitution. Such activity does not meet the definition of “commerce,” which was consistently used during the Constitutional Convention, Federalist Papers, and ratification debates to mean “trade or exchange.” As a result, it would not have fallen under the powers listed in Article I Section 8. Also, Justice Thomas (the Court’s best) noted that the framers would not have considered this an exchange and would have found it obvious that Congress lacked the power to ban or regulate it.

Justice Stevens writing for the liberal block (sadly joined by Justice Scalia) relied on three sketchy arguments to explain how the federal government had power over this isolated intrastate activity.

First, Stevens argued that the production and consumption of medical marijuana in the aggregate substantially affects interstate commerce. It’s worth noting that they had no evidence for this claim. Justice Thomas then demolished the argument. He noted that almost any aggregate activity substantially affects interstate commerce. For example, on this reasoning the federal government could regulate tooth brushing, unhealthy eating, and lack of exercise because in the aggregate they substantially affect interstate commerce.

In addition, he noted that this grant of power would result in there being no powers reserved to the states rather than the federal government. This brutalizes the Constitution.

Second, Stevens argued that the regulation of this activity is essential to the regulation of interstate activity because of concern over whether some of the marijuana produced for medical purposes might be diverted to non-medical uses. Thomas pointed out that in the past, the Court had never allowed the federal government to regulate non-economic activity as a way to control interstate commerce. He noted that if you count this activity as commerce, because it involves the production, distribution, and consumption of commodities, then it is hard why this wouldn’t also be true for quilting bees, clothes drives, and potluck suppers.

Third, Stevens argued that the regulation of the intrastate was incidental to the broader regulation of interstate marijuana trade. This is beside the point because whether governmental intrusion is a goal or incidental, it is unconstitutional if it aims at a distinct activity that is not within the federal government’s authority.

This issue matters because this case in effect puts a stake into the heart of the Constitution. The whole thrust of the Constitution is to limit the size and scope of the federal government. The Articles limits the powers of the federal government and the Bill of Rights (first ten Amendments) further protect against federal power grabs by emphasizing particular rights. Without a limited scope it makes no sense to list the federal government’s powers in Article I Section 8. Nor would the Tenth Amendment make sense because there would be few, if any, powers not delegated to the federal government. This case is in sharp conflict with the original intent of the persons who wrote and ratified the Constitution. They envisioned a federal government with clearly defined and sharply limited powers.

It is also worth noting that these issues have nothing to do with marijuana. Rather, they have to do with whether this country is going to be bound by the Constitution or not. With this decision, the Court decided that it would not and the Constitution became yet another casualty of the drug war.

02 January 2008

Gays and Sloppy Thinkers: Part #2

The Objectivist
Dunkirk-Fredonia Observer
December 27, 2007

In this column, we consider whether the state should recognize gay marriage. This issue is distinct from whether gay sex is immoral, because one might think that the state should recognize some immoral contracts (for example, a contract to supply pit bull puppies to the Aryan Brotherhood). The issue is not merely academic. Gary Gates of UCLA Law School points out that a 2000 U.S. Census report noted that there were 600,000 same-sex couples and in 2005, the Census Bureau estimated that the number is greater than 770,000.

Gay marriage is currently legal in the Netherlands, Belgium, Canada, South Africa, and Spain. In the United States, gays can get married in only one state, Massachusetts, and in Iowa this issue is currently in dispute. In addition, nine other states grant civil unions to gays. These offer the same legal rights as heterosexual marriages. These states include Connecticut, New Hampshire, Vermont, and New Jersey.

In addition, the Defense of Marriage Act (signed into law by President Clinton on 1996) made two changes in the law. First, it permits any state to refuse to recognize a gay marriage performed in another state. Second, it prevents the federal government from recognizing same-sex or polygamous marriage for any purpose.

Here is a good principle for state recognition and enforcement of contracts. If a contract was voluntarily entered into, doesn’t involve activity that is already illegal, and doesn’t involve direct harm to others, the state should recognize and enforce it. This is why we allow persons to purchase goods that are destructive (for example, cigarettes and alcohol) and that offend the majority’s sensibility (for example, pornography).

Jennifer Roback Morse writing for National Review argues against this claim. She argues that marriage is a permanent bonding of persons and not a contract. Even if true, state recognition of it is a recognition and enforcement of a contract. This is why it carries with it changes in the property ownership (for example, joint ownership of marital assets) and certain remedies in the case of contract dissolution (divorce). This is also why much of the state marriage-license requirements (competency, voluntary agreement, and conscionable terms) track contract law. Her argument is an interesting metaphysical claim about the nature of marriage, but irrelevant to the issue at hand.

With this in mind, let us consider the arguments against gay marriage. First, it is argued that gay sex is immoral and that the state shouldn’t recognize contracts to do immoral things. As argued for in a previous column, the arguments for this claim are unconvincing. Even if convincing, the state recognizes a wide range of contracts involving behavior that many consider immoral (for example, prostitution in Nevada and pornography in California) and so it is hard to see how this objection is supposed to work.

Second, some opponents of gay marriage argue that state recognition of it would harm children. This argument is also hard to follow. One-third of lesbian couples and one-fifth of gay male couples have children. This involves at least 154,000 couples (one-fifth of 770,000 couples). It is not clear that gay couples harm children who were born into them because the children owe their lives to the couples. The notion that gay marriage harms children not born to gay couples is a claim in need of supporting studies. I haven’t seen any. I should note that a few anecdotes are not data. As always the opponents of liberty (in this case the liberty to form a contract and have it enforced) should bear the burden of proof.

Third, other opponents claim that state recognition of gay marriage will break up heterosexual marriages. The data doesn’t support this. Wikipedia reports that divorce rates in the one state where gay marriage is legal, Massachusetts, are the lowest in the country and dropped after gay marriage was legalized. Researcher Darren Spedale similarly found that after Denmark legalized gay marriage, the rate of heterosexual marriage increased and divorce rates fell.

However, let’s assume that there was data supporting the claim that recognizing gay marriage correlated with greater harm to children and higher divorce rates. This still would not provide a sufficient case against gay marriage because the harm would be indirect. The responsibility for harm to children should fall on those who molest, injure, or abandon them, not third parties who affect how others think about the world. Such a system tries to control what persons do by controlling what they think and this treats Americans like children.

Fourth, opponents assert that if gay marriage should be legalized, then so should polygamous marriages (one person married to two or more others) and adult incest marriage. This, the opponent argues, is ridiculous. As reported by William Saletan of Slate.com, one response is that adult incest might lead to birth defects. But, as he points out, states might simply recognize it if the couple proves that they are infertile or are too old to procreate. This is the rule that five states adopt with regard to cousin marriage. In addition, if we are concerned about birth defects, then perhaps the state should sterilize or criminalize reproduction by persons whose retardation, mental illness, or physical abnormalities are in part genetic.

Another response is that gay marriages are not morally right, healthy, or characterized by love and this is not true of these other relationships. The moral claim is likely false for the same reason that it is false with regard to gay sexuality; such behavior does not involve a right infringement or exploitation. The latter two claims are empirical and in the absence of data, there is no way of knowing whether they are true. Even if true, this generalization admits of exceptions and the exceptions have rights. For example, the case for state recognition of gay marriage doesn’t rest on claims about the frequency of gay versus straight promiscuity, cheating, or comparative depth of love.

The same reasons that justify gay marriage also justify permitting adult-incest and polygamous marriage. People are still free to try to get others to avoid this sort of behavior, they just can’t use state coercion as a means of persuasion. I realize a lot of readers find adult-incest relationship and polygamous relationships disgusting, but this is merely aesthetic. The same can be said for those who find the idea of obese people having sex disgusting.

In short, the arguments against gay marriage fail on their own terms and in any case are trumped by liberty.