Strengthening Constitutional Self-Government

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Legalized theft of property

George F. Will on "Legal Theft in Norwood." A very good read.   

Discussions - 18 Comments

Professor Schramm:

I fear Will is trying to be too cute, and a little metaphorical, which is fine for writing, but bad for law.

What is happening is Norwood cannot be theft. It might be in some philosophical sense, or some moral sense, but it is certaintly not in a legal sense, and that is all that matters in this context.

Ohio Revised Code section 2913.02(A) defines theft as when a PERSON does something. Individuals are people, corporations are people, but States and municipalities, notwithstanding Hobbes, are not people. Therefore it is legally impossible for any government to engage in theft. They may engage in other things, but not theft.

Furthermore, it is more difficult to consider something theft when a person is compensated for the taking. If the people in Will’s article choose to pay for storage, and live with their daughter, that is certaintly their choice. They were compensated for the fair market value of their home, they were not taxed on this (per 1034 and 121 of the Tax Code) so they have all the funds they need to acquire new housing, or to pay for a lot of storage. Bringing troubles upon one’s self or fellows due to stubbornness does not make one a sympathetic figure (see Achilles in the Illiad).

Steve: I don’t think that anyone outside of you thought that Will’s reference to theft was a reference to Ohio’s legal definition of theft. Of course, governments don’t commit theft, they commit acts of redistribution--in this case, taking property from one owner and giving it to well-heeled cronies. As for your argument about just compensation, you can only get there after establishing that the property is taken for a public use. Perhaps you should have spent less time looking up the ORC’s definition of "theft," and more time examining the Ohio Constitution’s requirement for takings, which is more rigorous than the U.S. Constitution’s requirement. The Ohio Supreme Court has never found that takings for economic development or urban renewal in the absence of blight are permissible as a public use under the Ohio Constitution, and I sincerely doubt that they will do so here. (It is the law of the case that the Norwood region taken was not blighted.)

Comment 2:

You can feel free to name yourself.

I took your advice and finally looked at the takings clause of the Ohio Constitution. Ohio Constitutions are a lot harder to locate than the federal one, and it seems to be quite a bit bigger.

Anyways, Ohio case law might make the Ohio constitution’s takings clause more protective than the federal takings clause, but reading the Ohio takings clause does not necessarily require that result. You make it sound as if only a dummy could think that the Ohio takings clause is the same as the federal clause, or that it might be LESS protective than the federal clause. Let’s compare.

The federal takings clause is at the tail end of the 5th amendment. It states that private property cannot be taken for public use without just compensation. The Ohio Clause states "where private property shall be taken for public use." Maybe you can derive some extra special protection for basically the same phrasing, but this is surely not a winning argument. How can the Ohio takings clause be MORE protective than the federal clause, when it uses the exact same language "public use?" That makes absolutely no sense unless one were to assume that "public" somehow morphed in the years from the 5th amendment to whenever this amendment to the frequently amended Ohio Constitution was ratified. It is also important to note that the Ohio takings clause notes "private property shall ever be held inviolate," which sounds great, that phrase is not in the 5th amendment, until one reads the qualifying clause (that is, the phrase modifying "inviolate"), "but subservient to the public welfare". The federal takings clause does not contain any mention of private property being subservient to public welfare. It would seem that a very plausible argument could be made that the Ohio takings clause is LESS protective than the federal takings clause because public welfare is not as exacting as public use. One would assume that when the public welfare demands it (something different and probably greater than a public use) private property is not inviolate.

I looked at the Ohio takings clause. I suppose you can invoke case law, but since I imagine you would argue that Kelo is wrongly decided, it will be hard for you to argue case law should be given great weight even if it is wrong. In other words, analyze the Ohio takings clause and poke holes in my argument.

You can feel free to name yourself... You make it sound as if only a dummy could think that the Ohio takings clause is the same as the federal clause,

...or someone who fronts for developers stealing people’s private property. Care to name your law firm?

I’m glad that you were able to find the Ohio Constitution. Notwithstanding your protestations, that should have taken about 2 milliseconds on google. Your argument shows the depth of someone who is reading the document for the first time:

1) You failed to address the fact that the Ohio Constitution lists "acquiring, possessing, and protecting property" as a fundamental or inalienable right. From a strictly textual basis, this would require more heightened scrutiny than that which is required by the US Constitution.

2) Art. I, s. 19 does not just offer two sides of the coin: heads your property rights are inviolate, tails they are subservient to the public welfare. Rather, the remainder of s. 19 gives examples of public welfare, and they are stringent: "in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public . . . ." The clause then includes a catch-all at the end, providing that "in all other cases, where private property shall be taken for public use" compensation must be made. We cannot properly read this general statement in isolation from the list which precedes it. The canon of noscitur sociis demands that public use is of the same kind as the list which proceeds it, and economic development doesn’t even get close.

The US Constitution does not expressly make property a fundamental right, and it does not include a list of uses which qualify and limit the understanding of public use. I wouldn’t say that only a dummy could not see this (as you did), rather I would say that it is indicative of someone who has not taken the time to read the document thoroughly.

As for your attempt to remove caselaw, nice try. I don’t agree with Kelo, but I recognize it as binding regarding the US Constitution. It is not a binding interpretation of the Ohio Constitution, and therefore it is relevant to this discussion to discuss not one case, but the unbroken chain of cases from the Ohio Supreme Court which say the same thing: the Ohio Constitution does not permit takings outside of limited public uses, and economic development/urban renewal in the absence of actual blight just doesn’t cut it. Furthermore, I do think it is relevant to give over a century’s worth of case law more weight than the first impression of a reader who admits to having trouble even finding the Ohio Constitution.

WM:

I do not work for a lawfirm. I am a lowly second year law student. I think my reading of the takings clause will ensure that government is honest, and that people who suffer takings are compensated. You, and others like you, think that by disallowing a particular form of takings, that it will stop. That is foolish. America has had the desire to do these sorts of things since the 1930s. The mores and morals that support your position are not there. The best one can hope for is to limit the damage.

If public use is required, without some law clearly limiting the right of municipalities to do this (what will happen if the Ohio Supreme Court decides against Norwood) then municipalities will either start to own assets that have traditionally been private, will lie about the purpose of their takings, or will enforce the zoning laws so vexiously or enact new zoing laws that disadvantage poorer people, that those people will be forced to sell due to constant harassment and expense of bringing their property up to code. It is important to note that zoning is NOT a taking, so you have the same result, giving the property to private people, without ANY compensation, the worst possible system.

Your argument is with the mores of modern America. For whatever reason, such property distribution will happen. It is merely a question of how it will happen. I prefer city council openess so citizens can oppose the project if they wish, and using a taking method, condemnation, that provides for compensation, rather than zoning particular people out of their houses.

To the Ohio Constitution Person:

I read the portion of the Ohio Constitution provided in the Ashbrook amicus. If there was something wrong with my interpretation, or lack of it, it surely rests with the brief. Your argument is silly. 1st, if you pull out your legislative casebook, towards the end their is a list of interpretative techniques that counter whatever latin named technique you mention. Furthermore, you fall into the same trap again, asserting there is only one reasonable way to construe the amendment. There is not, and it would be most honest of you to admit it. If the construction were easy it would not be before the Ohio Supreme Court, all of the various appellate circuits in Ohio would have construed it the same way if it were easy to construe. You are right that the Ohio amendment contains examples of public welfare, such as road building, times of war, and public use, but NOTHING in the amendment states such a list is an all inclusive list of public welfare. Furthermore, your assertion begs the question. If Public Welfare is more broad than public use (which I asserted) and the examples provided are all public use type examples, then it is clear the list is not exhaustive. I’m not sure of the latin word for this argument, but it is simple construction. Can you somehow prove that the word "public welfare" is not more expansive than "public use"? You probably cannot because it is, and if it is then it is clear that things could be public welfare (when property is not inviolate) and not be a public use.

Steve:

You’re just in over your head. Llewelyn’s article (which is what you clumsily rely upon for the interpretation of canons) has been shown to be a farce. There are linguistic canons that are rules of grammar and usage, and then there are substantive canons, which are cobbled together "rules" from common law. The linguistic canons are much stronger, and don’t whither under Llewelyn’s attack. In this category: the doctrine of noscitur sociis is one of the strongest. Similarly, you make a number of arguments about lists which quite frankly show that you are not familiar with how to read a statute. I never said that the list was all inclusive. In fact, it expressly says that is is not by using the phrase" in all other cases." But when a general term such as this follows a list, we interpret the general term as being of the same kind as the list. (A classic example: a city ordinance prohibits placing leaves, debris, trash, or any other thing in the street. This does not prohibit parking your car on the street, despite that fact that it fits within the general term. It is not even reasonable to argue that the statute covers this.) Accordingly, the general term in the Ohio Constitution does not include anything else, including whatever policy Steve Sparks may like to promote government graft with transparency. Indeed, if you interpret that catcha-all term, or public welfare as broadly as you do, then you run afoul of another strong rule of statutory interpretation: the rule against surplusage. For you see, if public welfare is so broad that it includes economic development, then the listing of public uses is completely unnecessary, and the words themselves are rendered meaningless, given that the term public welfare includes those examples and oh so much more. So, public welfare cannot have the meaning you attribute to it. It would violate just about every rule of statutory interpretation to do so. Arguments to the contrary are quite simply meritless.

As for your argument that a pending court case demonstrating that the law is not that clear--puhhhleease. The Ninth Circuit alone stands as a shining example for the principle that unreasonable minds may disagree about clear legal issues.

Is "meritless" a word? I have often seen lawyers use the much more awkward phrase "without merit."

Leaving that aside, shouldn’t we be worried about state actions that are, to quote Steve, "theft" in the "moral sense"? Even if the theft is not technically illegal (sorry Steve, but I don’t find your arguments very persuasive on that score either), it seems to me that Will’s point is still a strong one. We should not tolerate moral thefts. If they are not already illegal, we should make them so.

Lawman:

The problem with your argument is that in America, government is an agent of its citizens. Principals are legally responsible for the acts of their agents. If the government were committing theft, then the citizens of Norwood are committing theft, and to a lesser degree the citizens of Ohio, since our legislature gave Norwood the power (if not the right) to do this. The making governments criminally responsible argument would make other people criminally responsible. If I tell Bob to kill someone, and he does, we’re both responsible. As a citizen, I delegate power to the legislature or council, whatever, and I would be responsible for their acts. I suggest that would be unwise.

To the person who understands legislative interpretation:

I admire your honesty and frankness for not using your actual name. Check out Rousseau’s First Discourse sometime on the use of masks, and the sort of people who use them.

I must have missed the Supreme Court case that ranked the various legislative canons. The Court, both liberal and conservative, tends to use whatever canon suits the end they wish to reach. Scaila has argued for a broad interpretation of certain words (such as sex in the 1964 Civil Rights Act) while Marshall argued for plain meaning in several cases. I suppose it is true that very clever people such as yourself could derive rankings for the persuasive power of legislative canons from Court opinions, but it must be noted the persuasive effect of such canons will vary based on the ideological composition of the Court (liberal v. conservative), and that the canons are not law. You could not go before the Court and argue "You are bound to use legislative canon #1," they would laugh at you. Supreme Courts do what they want, that is why they are supreme.

You should not assert that I do not know how to read statutes. If I can interpret the Tax Code (which I can and do) I can surely make plausible arguments concerning Ohio Constitutional amendments. Furthermore, you are wrong about which legislative canon should be applied for your argument to work. This is embarrassing.

You assert noscitur a sociis (see Comment 5) should be used, but this is clearly wrong. The Eskridge Legislative casebook, 3rd edition, pg 822 defines noscitur a sociis as when "two or more words are grouped together, and ordinarily have a SIMILAR meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word" In your example public use would be limited by military necessity and public road building, which is nonsensical. The proper canon for your argument is ejusdem generis which is defined in the same casebook, pg 823 as "where general words follow specific words...the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." This is the proper canon because the amendment refers to military uses, roads, and public uses (specific term, specific term, general term). Before unleashing a tirade or condescension you may wish to use the correct canon.

Your argument about surplusage is simply wrong. It would not be redundant to include public use if something broader than public use is included in scope of public welfare. It could be that the people who wrote the amendment wanted to make military necessity, roads, and public use allowances very clear so no litigation could occur disputing this, and then leave extra room for public welfare by not defining it, and allow the legislature or the judiciary room to decide the issue in the future.

Finally, I’ve merely interpreted this amendment as I would the Declaration of Independence (and as Lincoln did as well). The Declaration states that all people have Rights (that is the general term). Among these rights are life, liberty, and pursuit of happiness. The structure of this assertion leaves it open that people have more rights than those things (as indicated by the word "among"). The Ohio takings clause does the same thing. It assets property is inviolate except when Public Welfare requires that it not be. Public Welfare is the general term. The takings clause then states that "military use, roads, or public use" are examples of public welfare. It does not state they are the only examples. Your argument might be completely right, public use could be limited to the kind of use inherent in use of military nature or roads, but nothing in your statutory canon requires Public Welfare to be the same as public use (just as rights are not the same as the three enumerated in the Declaration), and your surplusage argument has no teeth (check out section 61 of the Tax Code for a good example of a statute that is redundant for litigation avoidance purposes). If we were to apply your reading of the Ohio takings clause to the declaration then pursuit of happiness (which is a general term) would be limited to life and liberty, and the "rights" (analogous to Public Welfare in the takings clause) would be limited to "pursuit of happiness"

Sparks, (if that is your real name.)

Why does it matter the person supplies his/her real name? Is that arguement still the same? Do his/her words automatically have no meaning becuase you can’t associate him/her with a fake name anyway? What law school do you attend?

Lincoln Hawk, your questions are over the top.

Steve, I don’t have Eskridge’s text in front of me, but I do have a book by Scalia, who has some experience interpreting this stuff. Here is what he says about the two canons you are arguing about:

"noscitur a sociis, which means, literally, ’it is known by its companions.’ It stands for the principle that a word is given meaning by those around it."

With all due respect, this sounds like just the sort of method we should be using here. But what about ejusdem?

"Another canon-perhaps representing only a more specific application of the last one-is ejusdem generis, which means ’of the same sort.’ It stands for the proposition that when a text lists a series of items, a general term included in the list should be understood to be limited to items of the same sort."

So there you have it. Ejusdem generis is merely a subspecies or category of noscitur a sociis. It would appear that your pal is not "clearly wrong," but correct. You have incorrectly parsed two interrelated concepts into separate and mutually exclusive rules. A ven diagram would be helpful, but I think you get the picture.

Mr. Cutler:

I have to disagree about your assertion concerning noscitur and ejusdem, although the fact that Justice Scalia and Eskridge (who seems to be one of the top dogs in Legislative Law) define it slightly differently shows how much faith we should put in such canons.

Eskridge states that noscitur applies when "two or more words are grouped together and ordinarily have a similar meaning, but are not equally comprehensive" then the more comprehensive word is limited by the more specific words. The example the test gives is "exploration, discovery, or prospecting." All three words refer to pretty much the same thing, but prospecting is a bit broader. Prospecting is limited to "exploration or discovery." That is noscitur.

Eskridge calls ejusdem a sibling of noscitur but of course a sibling is not a subspecies or category of the "parent," rather a sibling is like the other object but distinct. Eskridge defines ejusdem as "when general words follow specific words". Note the difference, there is no requirement of similarity between all words, and a general word, most often MORE general than the general term is in noscitur follows the specific term. The example of ejusdem given in the text is "any sheriff, constable, peace officer, state road officer, or any other person charged with the duty of enforcement of the criminal laws of this state".

The examples ought to show how noscitur and ejusdem differ. It is CLEAR that ejusdem is not a subspecies, it stands on its own, although the two have similar effects. I am not one to normally care about old interpretative canons and their proper names, but the other poster was so arrogant and rude that I felt he should be made aware of his error.

Let me get this straight. According to Supreme Court Justice Antonin Scalia, the godfather of modern jurisprudence, your preferred "canon" is merely a subspecies or sub-category of the other guy’s "canon." But according to some liberal law professor, it is not a sub-category, but rather, a "sibling." And yet it is "CLEAR" from these two facts that the first guy was wrong when he said you should apply the other canon?

Sorry, but siding with Justice Scalia hardly seems like a clear error.

Sparks

In case you didn’t notice MR. Cutler is talking to you!

Like I said before, legislative canons do not excite me that much. I merely brought it up because the person who I think wrote the previous comments probably used the same casebook as I did last year. Since he is using the same casebook, and not the Scalia casebook, I thought it rather humorous he was giving me a dressing down about my lack of interpretive skill, when he could not even name the proper canon according to our casebook.

I think Scalia’s definition comports with Eskridge’s (other than the subspecies, which I will address next).

Scalia distinguishes noscitur from ejusdem by stating that noscitur focuses on words, like the example I provided, while ejusdem requires a list, like the other example I provided. I am fairly certain that noscitur could not apply to military, public roads, and public use because the terms are too different; noscitur applies when the terms are fairly similar. Ejusdem applies when the terms on the list share a common attribute, and then the statute contains a catchall, such as the example I provided. It is clear that in the phrase military use, roads, and public use, that public use serves as the catch all (my nameless adversary and I agree about that), and therefore ejusdem would be appropriate.

As far as the subspecies goes, I’m not sure what point it would prove. One could cite the genus and still be wrong because the species is what matters. Imagine a professor asking a student Who wrote The Reublic. If the student said "an author" (the genus) he would be correct, but the professor would surely not count it correct because he wants more specificty, he would want the subspecies, such as a Greek Man named Plato who wrote it around 400-380 BC. The same would hold true for noscitur and ejusdem.

Finally, as far as Scalia asserting that ejusdem is a subspecies of noscitur, I do not think he does. He equivocates. The quote provided by Mr. Cutler includes the qualifier "perhaps" which is usually taken to mean--maybe. It seems Scalia is not asserting that it is a subspecies, he is saying it might be, or it might not be. This is hardly a strong enough position to harass me over.

No matter how many times you say it Sparks, you are wrong.

Steve Sparks

I have to say, I’m sorry that it took me so long to find this thread, because I really wish I could have seen it develop, and maybe offer some thoughts.

Anyways, here are my thoughts:

1.) Steve, you’re a moron.

2.) Steve, your ignorance of the law is only eclipsed by your inability to make a coherent statement in under 500 words.

3.) Steve, next time you want to learn/cite something authoritative on statutory interpretation, don’t turn to Eskridge’s casebook -- the man is a butcher of legal texts. The only thing worse than his views on statutory interpretation, are the warped thoughts that come out of the mouths of students who read his book and think they actually know what they’re talking about.

4.) In case you weren’t able to discern from the "plain meaning" of the words in my #3 above, I was referring to students like you.

5.) If upon graduation you need a job, I hear the ACLU is hiring. I think that would be a great fit, since you seem to share their zest for misconstruing legal texts.

6.) Refer to #1, above.

Sorry for the double post, I’m not used to this board.

Steve Sparks


I have to say, I’m sorry that it took me so long to find this thread, because I really wish I could have seen it develop, and maybe offer some thoughts.


Anyways, here are my thoughts:


1.) Steve, you’re a moron.


2.) Steve, your ignorance of the law is only eclipsed by your inability to make a coherent statement in under 500 words.


3.) Steve, next time you want to learn/cite something authoritative on statutory interpretation, don’t turn to Eskridge’s casebook -- the man is a butcher of legal texts. The only thing worse than his views on statutory interpretation, are the warped thoughts that come out of the mouths of students who read his book and think they actually know what they’re talking about.


4.) In case you weren’t able to discern from the "plain meaning" of the words in my #3 above, I was referring to students like you.


5.) If upon graduation you need a job, I hear the ACLU is hiring. I think that would be a great fit, since you seem to share their zest for misconstruing legal texts.


6.) Refer to #1, above.

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