SCOTUS Digression: Beating a Dead Horse

It seems that the army of brainwashed libertarians still can't accept the Kelo decision, although in a rational world there would be no discussion about it - it was one of the most clear-cut cases ever to be granted certiorari. Something is seriously wrong with the central nervous system of those who insist that the decision was wrong.

Let's quote the goddamn Takings Clause of the Fifth Amendment:

...nor shall private property be taken for public use, without just compensation.

That's as clear as any constitutional provision can be. The petitioner's argument was, essentially, that the Clause absolutely prohibits the government from taking private property for private use. A person who can speak English and follow simple logic cannot possibly reach such a conclusion.

First, the Takings Clause says nothing whatsoever about taking for private use. It says that, if the government wants to take your property for public use, it has to pay you "just compensation". It can take your property, it just has to pay you. (Whether "just compensation" is fair market price or something else, is a legitimate debate issue.) But it says nothing at all about "private use", and it is simply idiotic to conclude that anything in the Clause implies that such takings are forbidden.

Second, what would it even mean for the government to take property for private use? That's a contradiction in terms. The government is a public institution, and whenever it takes property, it is for public use. That doesn't preclude some private use: governments do sell (or give away) property to private individuals or businesses, just like they often outsource provisions of public services to private industry. But a government cannot, by definition, do anything that has no public purpose.

Suppose the local government takes your land (and your house on it), pays you just compensation (and assume, for the sake of argument, that everyone involved agrees that the compensation is just), holds it for 100 years as the idyllic Fifth Amendment Park, and then sells it to a private business that wants to build a shopping mall on it. Would this violate the Constitution? Would any of the dissenters in Kelo even think that it might violate the Constitution? If it did, then every sale of government property to private entities is unconstitutional. You cannot draw a distinction based on how the government acquired the property, because that would in effect give the original owner continued property rights - in other words, the taking would never be complete. But that would be absurd; not even the staunchest libertarian would argue that the government doesn't really own the property for which it paid full price.

Now change only one thing in the previous hypothetical example: instead of 100 years, the government holds the property for one minute. Can this change the constitutionality of the described actions? I challenge anyone to find anything in the Constitution - and feel free to search the penumbras as well - that would make this time interval relevant. There is nothing, and the example now resembles closely what happened to Susette Kelo. This is a no-brainer: no constitutional violation occurred. (There could have been a dispute over whether the compensation was just, but that was not the issue brought before the Court.)

What the city of New London did may well have been bad policy. The municipal and state laws that allowed it may well have been bad laws. While the Constitution doesn't forbid the kind of eminent domain exercise as happened there, it also doesn't prevent state and local governments from enacting laws that restrict takings and prevent commercial involvement, or simply impose an arbitrary time limit in the hypothetical examples above. But those are not constitutional issues; moreover, the most zealous critics of Kelo generally want to minimize federal government's powers and favor maximal freedom of state and local governments to run their affairs as they see fit. Yet in this case, they wanted the federal government - federal courts, no less - to invent a new concept in the Constitution and use it to tell every state and local government, for every property transaction they make, whether they are allowed to do so or not.

Bang Bang! Part 2

Continuing with the observations on the Heller decision... Scalia wrote (pp 19-20):

These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” (...) This right has long been understood to be the predecessor to our Second Amendment. (...) It was clearly an individual right, having nothing whatever to do with service in a militia.

(Emphasize added.) That is a wrong conclusion. All the historical facts Scalia quoted were about one social group (religious in this case) trying to dominate the other and the other being armed to defend itself. While I would agree that all rights are individual, this is about as collective as the exercise of rights can be. In Scalia's context, arms would be of no use to an individual Protestant, but only to a Protestant militia resisting a Catholic domination. Scalia is not helping his cause with this example.

Another instance where Scalia's historical facts don't help his interpretation is found on p. 25:

During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. (...) John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.”

If anthing, this points to my preferred interpretation of the Second Amendment, which is that it codifies a right to serve in the armed forces (be part of the militia), a right that would be violated by a formation of a restricted military class of citizens, something that would have been reasonably perceived as a real risk in the late 18th century. But that is far from a right to own or carry weapons as a private citizen, unrelated to military or paramilitary service.

Scalia is on the verge of agreeing, but he doesn't like the result, so, after all this analysis, he declares the prefatory clause academic:

It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.

This logic would be palatable if Scalia were known as a supporter of unenumerated rights, but, that not being the case, he is strangely out of character. He gives all the importance to the right that, according to him, most Americans perceived to have at the time (a typical foundation for an unenumerated right), and none at all to the reasons this right was codified in the Constitution. He seems to argue that the operative clause of the Second Amendment is redundant, while the prefatory clause is irrelevant.

Scalia's interpretation of the analogous provisions in state constitutions adopted around the same time is extremely strained. While PA and VT clearly did guarantee private citizens a right to bear arms for self-defense, Scalia's ascribing the same meaning to the provisions in NC ("for the defence of the State"), GA (“for the security and defence of this province from internal dangers and insurrections”) and MA ("for the common defence") constitutions is arbitrary, to put it mildly. And again, the very nature of the argument is so un-Scalia, who would never find the right to privacy in various state constitutions relevant for the U. S. Constitution, nor would consider the significant minority of states that have abolished the death penalty to be a relevant factor in Eight Amendment cases.

Next time: Scalia vs. Miller and so on.

Buck Ofama!

I've been Obama's supporter since he announced he'd run for President, but if he continues to degenerate into a spineless wimp, I'll be tempted to cast a write-in vote for Wesley Clark.

Bang Bang!

I expected the SCOTUS would strike down DC's ban on handguns, but I wasn't sure if they would do it on very narrow grounds with something approaching unanimity, or with a sweeping interpretation of the Second Amendment in a 5-4 decision. The pessimists have it - the right wing decided to pursue its own agenda and carve in stone its side of the controversial issue, even though it could only do it with the slightest possible majority. Regardless of the quality of arguments, this stubborn approach is one further step in undermining the reputation of the Court.

The opinion has 64 pages and the dissents another 90, so it will take me a while to read through it, and I'll comment on it as I go. Here is the first instance of the typical Scalia sacrifice of logic for rhetoric (pp. 6-7):

What is more, in all six other provisions of the Constitution that mention "the people," the term unambiguously refers to all members of the political community, not an unspecified subset. (...) This contrasts markedly with the phrase "the militia" in the prefatory clause. As we will describe below, the "militia" in colonial America consisted of a subset of "the people"---those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to "keep and bear arms" in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as "the people."

There are two logical problems with this statement. First, Scalia is ignoring plausible alternative readings that avoid this purported tension, and second, his insistence on "a subset" is tenuous.

If the Second Amendment is read to guarantee a right to "keep and bear arms" for militia-related purposes, and that right belongs to "the people", then it also implies the right of "the people" to serve in the militia. In other words, it prevents a permanent segmentation of the society into an armed military class and a disarmed one. That couldn't have been a trivial issue in 18th century, so this is at least a plausible reading of the amendment, and one which uses the terms "the people" and "militia" in a fully compatible way.

Also, being "male, able bodied, and within a certain age range" is hardly a restrictive set of conditions. The political community of the time included only men, and of course only adult men, so exclusion of women or underage men is already implied in "the people" as Scalia defines the term. We thus only need to consider the significance of the exclusion of old and disabled men for the distinction between "the people" and "militia" as its subset. But a musket was not of much use to many a disabled man (particularly if the disability had to do with upper extremities or teeth), and an older but healthy man, although not required to serve in the militia, wasn't necessarily forbidden from doing so. Therefore, Scalia's distinction is meaningless.

And yes, he tries to justify it in the next several pages, but his arguments just get more and more strained, culminating with a false analogy on p. 13, where he writes that (because of how he parses the idiom "to bear arms") using the phrase "to keep and bear arms" to imply a military context would be like saying "he filled and kicked the bucket" to mean "he filled the bucket and died". He calls that grotesque, which it is, but mainly because of his own mangling of the relations between words.

What Exactly Is Wrong With Hillary Clinton

Normally, Digby is one of the most perceptive and astute bloggers around, but her recent writings are becoming uncritical toward Hillary Clinton, and this new one is just plain wrong in many ways.

I'm hearing and reading a lot today about how the Clinton supporters are going to ruin the party with their obstinate refusal to acknowledge that Obama has won and threats to vote for McCain. I think everyone needs to take a breath.

The fact is that this campaign is a photo finish. There has never been a primary where it's come even close to a tie before. Someone had to win and it's going to be Obama and it's going to be seen as legitimate, mostly because the primaries ran their course (for which everyone should actually be grateful.) But to think that a race this close could end with an instantaneous round of kumbaaya among the loser's most passionate supporters is probably a little naive. It's not human nature. (And if Clinton had been the one to win with this narrow lead, you can be sure the other side would be threatening to stay home or vote for McCain too. See this article from just before the Indiana primary if you don't believe me.)

In the article Digby links to, there is not a single example of an Obama supporter threatening to vote for McCain. There isn't even a speculation that some might do or contemplate that. Sorry, Digby, the article doesn't support your thesis.

Very few people are criticizing Clinton for remaining in the race until the end of the primaries. In fact, some Obama supporters, notably kos, consider it a good thing because primary campaigns help build state party infrastructure. That view is probably correct: continuation of contested primaries is helping the eventual winner, other things being equal.

The problem with Clinton is not in her persistence, but in the tactics she has been using since she became the underdog. She has chosen an all-out attack on her current opponent, and to hell with honesty, consistency and dignity. We could call it the Underdog's Gambit and it makes sense in the final election round, when a win is a win and a loss is a loss, period. But in the primaries one has to think ahead to the general election, and has to consider that the next-best thing to winning is losing to the eventual November winner. And with the issues like foreign policy, health care and Supreme Court nominations critically depending on the party - much more so than the person - winning the Presidency, the "next-best thing" should be valued even higher this year than usually.

I have no problem with Clinton trying to win the majority of delegates, even though that has not been realistic for quite a while. But she knows very well it isn't realistic, so her recent efforts have been aimed at delegitimizing the process, perhaps with the idea that she could then prevail, rules notwithstanding, in the name of "justice" or some other rhetorically convenient concept. Her insistence on the "popular vote" (and factually false claim that she is winning it) and frequent allusions to the 2000 presidential election are despicably dishonest efforts to delegitimize the Democratic Party delegate-selection process. Many of her surrogates' statements at the Rules & Bylaws Committee meeting Saturday matched typical Republican rhetoric in blatant disregard for truth and logic, and were so much more malicious because they were useless for achieving the objective of getting a favorable ruling. The real purpose of ridiculous statements about hijacking the process or disrespecting the will of the voters was to set the tone for an incessant chant to follow about how Clinton was wronged and robbed not just by Obama (who couldn't do it anyway), but by the Democratic Party leadership.

She sure picked the wrong time to assert that her own party is trying to steal an election. I wonder if she has considered what it would mean for her own chances in November if she were to somehow prevail at the convention using this argument. Those tactics are hurting the party no matter who the nominee is.

In addition, her insistence on "electability" is hurting Obama if he becomes the nominee, which is practically certain. Although her reasoning is bogus, and her claims subjective at best, there is some risk that this could become a self-fulfilling prophecy: if you repeat often enough that a candidate is not electable, some people may be influenced by that and their views of the candidate can become less favorable. If anything, the mantra has more power coming from a prominent politician of the candidate's own party.

Clinton's campaigning to the last primary is fine. Her hunt for superdelegates until there is a clear majority is fine. Even after Obama has a majority of delegates, it wouldn't be improper - although it might look desperate - for Clinton to contact Obama's superdelegates once more and ask them to reconsider their allegiance. But if they don't change their minds quickly, Clinton needs to stop fighting and support Obama without any reservations. She should do that no later than the end of June.

And most of all, she needs to stop implying that her own party's delegate-selection process is illegitimate, and she needs to stop trying to turn voters' emotions against Obama. And she should stop those things immediately.

In A Better World, This Horse Would Be Dead

PZ Myers, prompted by another moronic response, reminds us of his classic post, which is not just good soundbite, but also links to a real gem by Jason Rosenhouse.

This should qualify as beating a dead horse by now... except that the horse is very much alive.

Presidency Is an Institution... a Mental Institution

Ed Brayton hits the nail on the head:

It's utter bullshit and they know it's utter bullshit, but there's a subset of absolute morons in this country to whom such "tough" - read: utterly stupid - talk sounds convincing.

R Is for Recount

I don't have HBO and haven't seen Recount, but any occasion is good to remind Americans that the 2000 presidential election was stolen and that the administration we are suffering was not elected, but installed in a coup d'etat. Digby's post about the nightmares of 2000 is worth reading (as are her posts generally).

And yes, I remember that Bush was elected more-or-less legally once in the meantime, in 2004. I have acknowledged that by referring to him as "President", something I absolutely avoided throughout his first term. But he won that election as as the incumbent, a significant advantage which he gained as a direct consequence of his illegal 2000 power grab.

What has made me sad for the past seven and a half years is how little outrage and protest there was when Bush stole the election. I didn't live in the DC area at the time, but I came to protest against the inauguration. Sadly, there were only a few thousand (5000 would be my estimate) mostly mild-mannered protesters. In a vital democracy, millions would have taken to the streets and/or refused to cooperate with the administration. I learned then that our democracy is ill; the only question is, is the illness terminal, or will democracy recover?

Harrison Ford Could Be the NRA Spokesman

Not the NRA you think, though.

On May 13, Harrison Ford reached the Social Security Normal Retirement Age (NRA).

His next movie will be Indiana Jones and the Dentures of Methuselah.

This country's Next Top Despot?

I wonder if John McCain watches Jeopardy!

OK, I love Jeopardy!, it is my favorite TV show for many reasons, but occasionally even they get some facts wrong. A particularly ill-conceived clue in the May 16 game said

Not feeling so tolerant lately? Become Mahmoud Ahmadinejad's successor as this country's "Next Top Despot"

As much as this was in a category that was obviously intended to be humorous ("New Reality Shows?"), it was a bad clue because there is no way Ahmadinejad can be called Iran's "despot". A despot has absolute power; the only person in Iran who can be so described is the Supreme Leader Khamenei.

Well, OK, Jeopardy! is just a game. It isn't like a US President - or a presidential candidate - made such a gaffe, right?

Right... that was Friday. On Monday, this happened:

Oops!

OK, he didn't say "I learned that watching Jeopardy!" but the coincidence is striking.