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Sunday, July 10, 2005 - 8:49amSanction this postReply
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Way to put a fine point on it, Tibor!

And a fine point is definitely what was needed here! I found the contrast AMONG libertarians (e.g. anarchists vs. non-) interesting. I especially liked your insight that those whom I've been calling "anarcho-libertarians" -- really do have a basic acknowledgment of our need of law (or justice), they just undercut themselves via their narrow-minded methods of bringing it about.

Ed



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Sunday, July 10, 2005 - 11:16amSanction this postReply
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And how is the Court to reverse itself on this one?



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Sunday, July 10, 2005 - 2:12pmSanction this postReply
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A very interesting article. I am not a lawyer, but I am interested in Constitutional law to the extent that I want to understand what the Constitution says about the limits of federal power and what that implies for the state governments. For anyone with a similar interest, I recommend reading Stephan Kinsella's essay that Tibor provides the link to near the beginning of his article. It is rather long and it took considerable effort on my part to plow through it, but it was worth the effort.

Kinsella's main point is, I think, that the Supreme Court does not have jurisdiction in the Kelo case. The Court assumes jurisdiction (in this case and others) based on its interpretation of the 'privileges and immunities' clause of the fourteenth amendment (section 1). Kinsella invites you to read the amendment yourself. If you think the meaning of 'privileges and immunities' is not clear, you're not alone. A lot of legal scholars would agree. And it's that ambiguity of interpretation that, over a long period of time, allowed the expansion of the assumed authority of the Supreme Court to rule on the validity of state laws.

Kinsella thinks that the Court made the right decision, but for the wrong reasons, and preferably should not have even considered the case. (My apologies to Mr. Kinsella if I have mischaracterized his ideas in my explanation. I am over my head in this legal stuff.)

This situation is similar to the legal debate about Roe v. Wade. Whatever your opinion about abortion, many critics assert that the Supreme Court should not have considered the case, since abortion is not mentioned in the Constitution and should be strictly a matter of state law.

All this is part of an old debate about what federalism is, or should be. Tibor seems to think that the best approach is to consider all the past expansion of federal power as established, as water under the bridge, and now, as he says, "...if the Courts can function as bulwarks against such violations [of individual rights by all levels of government], I say go for it. We need all the help we can get and no arcane technicality of what is by now pretty effectively obsolete constitutional law should stand in our way." Regrettably, he may be right. I guess I'm still hopeful that another case will come before the Court where a competent lawyer, who values individual rights, can make effective arguments about fundamental constitutional issues that serve to limit or even lessen the power of the federal government and even of the Court itself. Hope springs eternal.







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Post 3

Sunday, July 10, 2005 - 3:38pmSanction this postReply
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In my reading of the constitution, my own conclusion is that "the privileges or immunities of citizens of the United States" in the 14th refers to the enumerated rights within the constitution and the various amendments. Thus the takings clause is restricting on all levels of government and the Kelo taking should be required to meet at least the federal standard. State and local standards can of course offer greater protection. The Supreme Court would be able to hear the case, since the question now bears on whether Kelo meets the federal standard.

That's where I think they got it wrong. Public benefit is not public use. Unfortunately, Kelo was not an outrageous decision, if you look at the precedents. Public taking for a government building or military base? Obvious public use. For a road or a dam? Not much difference. A privately owned railroad or dam? Well, as common carriers, these are public uses under private ownership. A blighted neighborhood? Add local police powers to the mix, and point out the crime reduction, and this becomes accepted (wrongly, IMO). And now, finally, to increase tax revenue? Not much difference. We got here by short, easy steps. We'll have to go back the same way.

An example of the classic heap problem. Three grains of sand are not a heap. Add another, still not a heap. Keep going, and at each step you start with a not-a-heap of sand, and only add one grain. But at some point, even though you just add one more grain to the not-a-heap, you step back and find you have a heap. Kelo just made many people see the heap that was already there.




Post 4

Sunday, July 10, 2005 - 4:19pmSanction this postReply
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You might want to read Rodderick T. Long's article Federalism and the Bill of Rights: The Pros and Cons of Kelo.
Libertarians are divided over the Supreme Court's decision in Kelo v. New London to allow coerced property transfers to private parties to count as "public use." No libertarian likes the decision as it stands (since, for one thing, it clearly authorises an expansion not only of State-level but of Federal eminent domain power); the disagreement is over what the Court should have done instead. Some libertarians (see, e.g., Richard Epstein and Sheldon Richman) think the Court should have protected private property owners from this expanded assault on their rights by striking down the New London statute; other libertarians (see, e.g., Stephan Kinsella and Ron Paul) think the Court should have declined, on federalist grounds, any jurisdiction over eminent domain at the State level.

I find myself in partial agreement and disagreement with both sides. Let me explain why.




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Sunday, July 10, 2005 - 4:41pmSanction this postReply
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Enjoyable article Tibor. 

As I have mentioned in other threads I live in New London.  Yesterday our area had its annual fireworks party where the world famous gucci brothers come to the Groton \ New London and put on a pretty large show compliments of the local indian casinos.  This year some obviously unhappy individual hired one of those advertisements dragged behind a plane that circled the whole night to display the message:

"WELCOME TO NEW LONDON, WHERE YOUR HOUSE IS OURS"




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Post 6

Sunday, July 10, 2005 - 6:03pmSanction this postReply
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It would be nice if Kinsella & Co. advanced their arguments for Kelo being at least tolerable jurisprudence in a forum where other constitutional scholars chime in and so Kinsella & Co., are matched with the arguments of experts. I am not an expert in Constitutional jurisprudence but I can tell when some folks are dodging the crucial issues--like what kind of constitution would really be best for the maintenance of a society based on individual rights given the contemporary realities and reasonable possibilities. It's no good saying, well we should really all be living in tiny communities like those of ancient Greece--that pretty much amounts to avoidance, not problem-solving. I am also curious whether those defending strict local jurisdiction would simply stand aside if a local city council decided to abolish free speech, ban all weapons, institute search and seizure measures, abolish other due process measures, establish a city religion, insist on extracting force confessions from its citizens, etc., etc.--which is to say, proceed to violate the libertarian aspects of the US Constitution or make use of country-wide provisions of a federal constitution to strike down such policies?



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Sunday, July 10, 2005 - 6:05pmSanction this postReply
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If Bush were to appoint two justices more like Thomas or O'Connor than the others and thus gain a roughly property rights favoring court, it could consider a Kelo type case--given that Kelo was decided very narrowly and thus didn't achieve an easy precedent--and make clear that taking are justified only for public use, which is to say use that serves a necessary function of government (court house, police station, military base). 



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Sunday, July 10, 2005 - 6:06pmSanction this postReply
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Rick P.,

Thanks for the link. I've just read Mr. Long's article. I love his strict interpretation of 'just compensation' that results in the nullification of eminent domain. Hoist by its own petard, I believe the saying goes. I'm feeling frustrated now. Dammit. So many ideas. So little time. Now that you've introduced me to it, I'll have to read more of Long's stuff, when I can. Thanks again.



Post 9

Sunday, July 10, 2005 - 10:06pmSanction this postReply
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Tibor,

Thanks for a small voice of sanity in this insane affair. I can't believe Libertarians are defending local theft against federal theft based on constitutional law.

What irks me to no end is the word "private" in both the government's statements and the Libertarians' discussions. Where is there anything private? Since when does a government monopoly merged with a company with government protected privilege constitute a private construction project?

Not in any concept of the word I ever heard tell of - not even a distorted one.

Why not start with "influence peddling" and go on from there? It's more honest.

Michael




Post 10

Monday, July 11, 2005 - 3:51amSanction this postReply
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MSK,

I doubt you can point to any libertarian who has defended theft of any kind. You are confusing concern with the process of protecting rights with the rights themselves. Libertarians criticize not only this specific New London taking but all usage of eminent domain. Any disagreement is about the best way to stop eminent domain.



Post 11

Monday, July 11, 2005 - 11:48amSanction this postReply
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Rick,

Point taken if looked at from the positive angle (theft is good). That was not the impression I wanted to convey. When looked at from the negative angle (one type of theft is better than the other), that is what I see being defended - albeit within the context of all theft is bad (and eminent domain being characterized as theft).

Still, what I have read so far from those making a defense for the Supreme Court's Kelo v. New London decision sounds a great deal like appeasement from the way it was worded, not like any real blueprint of how to stop or restrict eminent domain.

My own view is on the well-defined restricted eminent domain defended by Tibor, although not completely for the reasons he gives. 

I agree with him that human nature requires the existence of government. In order to control it, there must be only one agency that has the monopoly on the use of initiating force, deciding contractual disputes, defending against invasion, etc. More than one agency becomes unwieldy, with conflicts between them extremely long, tedious and damaging to citizens. (I am not talking about the state/federal issue - I consider all of them to be divisions of the same basic entity.)

The physical administrative requirements for this entity to function (in my view, being extremely well-defined and restricted) supercede the "rights" of an individual to a piece of real estate in a specific location. But it does not supercede his right to due compensation so he will be able to acquire another similar piece of real estate somewhere nearby or somewhere farther off, if he so decides.

I will stick to my guns about "influence peddling" and the misuse of the word "private."

Michael
(Edited by Michael Stuart Kelly on 7/11, 12:06pm)

(Edited by Michael Stuart Kelly on 7/11, 12:08pm)




Post 12

Monday, July 11, 2005 - 7:31pmSanction this postReply
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MSK,

You and Tibor both have the same minimalist idea about eminent domain. I'd like to explore shape of that idea. For example, suppose the mayor or city council of Somelittletown, USA decides it's time to have a new administration building. They or their consultant thinks somewhere on Main Street would be nice. But nobody wants to sell, at any price. The city attorney says they can condemn any property they like, pay the owner 'fair market price', whatever that is, tear down the old building and build the new admin center.

My question is, why should they not, like any other market participant, buy property at the edge of town, if they can't find a seller in their preferred location? Maybe no one in the entire county will sell. This could be considered a clue that the government 'need' is not important enough to impress the taxpayers. I see nothing wrong with treating the government as equal under the law. I can't steal and they can't steal.

Perhaps you could give an example of what would be a minimalist application of eminent domain. (And let's assume it's not a case of national security, coastal defense, etc., or would that be the only justification?)



Post 13

Monday, July 11, 2005 - 8:14pmSanction this postReply
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Randy,

I can't speak for Tibor, only myself. However I prefer to stay within your example. You asked:
My question is, why should they not, like any other market participant, buy property at the edge of town, if they can't find a seller in their preferred location?
They should ideally. However, who would determine where to place the seat of government would be a body elected by the citizens of Somelittletown, USA, i.e. the very ones you posit who will not sell.

I want to stress that this is a very restricted and well-defined instance of one right (the right of the government of citizens to have a physical seat) superceding another (the right of an individual to own one particular stretch of land) by freely elected officials. I do not support democracy being used against well defined individual rights.

Michael



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Post 14

Monday, July 11, 2005 - 8:37pmSanction this postReply
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Organized theft is still theft... even if 'payment' is given to 'balance' the theft - is still theft...



Post 15

Monday, July 11, 2005 - 8:46pmSanction this postReply
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I disagree Robert M.

That case is not theft. It is a forced sale under limited conditions.

Michael




Post 16

Monday, July 11, 2005 - 8:49pmSanction this postReply
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A forced sale IS theft... trade is value for value voluntarily given...



Post 17

Monday, July 11, 2005 - 8:53pmSanction this postReply
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Michael K,

sale Pronunciation (sl)
n.
1. The exchange of goods or services for an amount of money or its equivalent; the act of selling.
2. An instance of selling.
3. An opportunity for selling or being sold; demand.
4. Availability for purchase: a store where pets are for sale.
5. A selling of property to the highest bidder; an auction.
6. A special disposal of goods at lowered prices: coats on sale this week.
7. sales
a. Activities involved in selling goods or services.
b. Gross receipts.

I don't see "force" in their anywhere. I don't think you can call it a "sale". I don't want to confuse humans as "traders" with the political kind.



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Post 18

Monday, July 11, 2005 - 9:10pmSanction this postReply
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Guys,

When one right supercedes another, there is no theft. It is one right taking precedence.

Theft for this is a misuse of the term. You may not like "forced sale" for eminent domain, but it is not theft (under the right conditions).

Calling it theft in 100% of the cases is nothing but a slogan for political party pamphlets. I don't buy it.

Heil Mises! (right arm extended straight up and out at an angel...)

Michael


Edit - Mike, I know where you are coming from and I agree more than I am letting on right now. I believe that firm definitions of facts when limiting power are to be precisely that, facts. Not slogans. Also, I agree that I did not see the word "forced" in your dictionary quote (which is why I added it), but I did not see "voluntary" either.

(Edited by Michael Stuart Kelly on 7/11, 9:18pm)




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Post 19

Monday, July 11, 2005 - 9:21pmSanction this postReply
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"Heil Mises! (right arm extended straight up and out at an angel...)"

Nazis, Mises and religion all in one sentence.... : )

Edit to say: POLITICS, Economics and religion....

(Edited by Mike Erickson
on 7/11, 9:23pm)

(Edited by Mike Erickson
on 7/11, 9:29pm)




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