Thursday, June 30, 2005

R.I.P. Private Property

Kelo et al v. City of New London

Thursday, June 23rd will go down as the day the private property (which was already on life support thanks to the Supreme Court) finally bought the farm. Afterwich the farm was bulldozed by the state based on the expanded definition of eniment domain and is slated to become a Super WalMart.

I have disagreed with almost every Supreme Court ruling since, well, ever - but this one is truly mindboggling. Liberals and conservatives alike can be genually offended by this decision. The hiliarious side effect is that a group lead by Logan Clements has petitioned the Weare, New Hampshire Board of Selectman to seize David Souter's farmhouse and turn it into the "Lost Liberty Hotel".

The proposed hotel would feature a museum with exhibits detailing the loss of freedom in America. As part of the application, the parcel of land in question was selected because it is a 'unique site being the home of someone largely responsible for destroying property rights for all Americans'.

While I'm highly sceptical that this proposal will succeed - it is interesting to note that Chip Meany, the town's code enforcement officer, is proceeding with the application process. Hah!

Religion: the new porn

From a commenter at Volokh:
The standard essentially is that the work, taken as a whole, appeal to the improper (prurient) interest in religion, and that it lack redeeming secular value. My advice to states wishing to erect 10 Commandments or similar monuments would be to hire pornography defense lawyers from the 1960s and 1970s for advice on how it's done, because their ouevre is now the state of the art in this area. [...] Go ahead and try it! Seriously! Read some of the old obscenity cases, cross out the word 'sex', write in the word 'religion' in crayon, and see if you don't get something astonishingly identical to the Supreme Court's current religious-monument jurisprudence!
For what it's worth, here's my take on the whole Establishment clause controversy: I don't see the clause as creating an individual right at all. Nobody has the right to the absence of an established religion. Suppose that Congress, in blatant defiance of the constitution, decided to establish Tibetan Buddhism as the state religion. Suppose it passed a law declaring the USA to be a Buddhist country, put the Dalai Lama's picture on all currency, put a mandala on the flag, adopted a mantra as the national anthem, and set up a voluntary tax from which priests would be paid. This would be absolutely unconstitutional, but I don't see how anyone's rights would be violated by it. The rest of the 1st amendment, including the Free Exercise clause, protect individual rights; the Establishment clause does not - it merely prohibits Congress from doing something that it would otherwise be allowed to do.

The reason why the Establishment clause is there in the first place is for the benefit of the states. At the time of federation, some of the states had established religions, and were quite happy with them, and saw no need to change them. Meanwhile, Virginia and the Carolinas had no established religion, and were against the whole idea. What all of these states did not want was the federal government establishing a religion over their heads, which would conflict with what they had decided to do at the state level.

The 14th amendment, for the first time, compelled the states to respect certain vaguely-defined individual rights, and eventually the Supreme Court decided that the Bill of Rights could serve as a guide to which rights the 14th amendment meant to impose on the states. And it decided that the whole of the 1st amendment should be read as if it were incorporated into the 14th, including the Establishment clause. Thus, suddenly the states were barred from establishing religion, and most of the cases we've seen since then stem from this decision. And that decision, I submit, was wrong.

Nobody has a right not to have an established religion, so long as he is free to ignore one if it is established. An establishment of religion neither compels anybody to do anything, nor forbids anyone from doing anything, so it makes no sense to regard the prohibition of establishment as a right. And if it's not a right of any person, then what phrase in the 14th amendment can possibly be read as forbidding it? Remember, the 14th amendment does not say "the 1st amendment is hereby extended to the states"; all it says is that the states have to give each person due process, that they can't infringe people's privileges and immunities, etc. The free exercise of religion is a right which, after the passage of the 14th amendment, the states could no longer infringe; if the absence of an established church is not a right then a state that establishes one can't be infringing it.

Wednesday, June 29, 2005

Judicial Murder

The Schiavo case was neither the first, nor the worst. This story is absolutely appalling. I believe that all the people involved in this, from the judge down to the nurses who implemented the court order, ought to be tried for murder and locked up forever, or executed. This (if the case has been accurately described) is a true Nuremberg situation, where, no matter what the court said, the law was sufficiently obvious to all concerned, and they had a duty to obey it, and to defy the court order. Therefore, punishing them would not be ex post facto law.

Tuesday, June 28, 2005

Jonah Goldberg, American Hero

You've got to read this.
I don't use the word "hero" lightly, but I am the greatest hero in American history. Except, maybe, for Al Gore.
(via Instapundit)

Wednesday, June 22, 2005

Save the Whalers

The International Whaling Commission has voted down, 29-23, Japan's motion to resume commercial whaling.

According to its web site, the IWC's purpose is to manage whale stocks, "and thus make possible the orderly development of the whaling industry". It was formed in 1946, when the major whaling countries, alarmed at the depletion of whale stocks all over the world, got together to set limits in order to save the industry from committing suicide by driving its prey into extinction. This is a key point: the purpose was not so much to save the whales, as to save the whalers.

Thursday, June 09, 2005

"I used to laugh at Wickard"

Randy Barnett has posted his analysis of Gonzales v Raich, and why he lost. As he says, this was a left-liberal decision, and "I credit the four Lopez and Morrison dissenters with putting their vision of the Constitution above precedent", and with not making "an exception to their principled stance in favor of federal power".

Tuesday, June 07, 2005

Parents' Day

Edward Whelan at Bench Memos wrote a few weeks ago about what a radical out-of-the-mainstream leftist Ruth Bader Ginsburg was when President Clinton nominated her for the Supreme Court, and how the Republican-controlled Senate nevertheless confirmed her, 96-3, within 6 weeks of being nominated. Ken Starr (who should also be on the Supreme Court) recently also used her as an example of how a judicial nominee's political beliefs shouldn't be used to block her, and how the recent policy of doing so, especially by the Democrats, is a "radical, radical change".

Monday, June 06, 2005

So much for the "new federalism"

It is a sad day for liberty.

Then again, it was a sad day for liberty back in the 1930s, when the Supreme Court set the precedent for this decision in Wickard. It was always going to be tough to persuade the court that Congress has the right to tell you not to grow wheat on your own land for your own consumption, but it doesn't have the right to tell you the same thing for marijuana.

I think Randy Barnett successfully distinguished the two cases, because there is a legal interstate market for wheat, and the reason people weren't allowed to grow their own was to force them to buy, and therefore raise the price; that was a terrible decision, but had at least a certain perverse logic to it. In this case, though, the interstate market is illegal, and Congress isn't interested in controlling the price, it's interested in eliminating it altogether. Congress isn't telling Raich to buy her pot instead of growing it, it's telling her not to use it at all, which is very far from "regulating interstate commerce".

I'm glad and not at all surprised that Thomas saw things this way, and dissented from the decision; I'd love to see him as the next Chief. And I'm not at all surprised to see Stevens write the majority decision, joined by Souter, Breyer and Ginsburg. But I'm mightily disappointed at Scalia and Kennedy, who've been champions of the "new federalism", for stepping back from this opportunity to roll back just a little of the New Deal.

And while we're on anniversaries...

It's the 38th anniversary of the liberation of Jerusalem from Jordanian occupation. Though stories like this remind us that it isn't nearly as liberated as we thought. Still, happy Jerusalem Day.