Strengthening Constitutional Self-Government

No Left Turns

A serious blow to private property

The Supreme Court has ruled that the city of New London, Connecticut is perfectly within its rights under the eminent domain laws to seize property from its homeowners and turn them over to a corporate conglomerate for private purposes. In a 5-4 split decision, the Court decided that the language "for public use" in the Takings Clause of the Fifth Amendment is flexible enough to include use by private firms, as long as this can be justified on the grounds of "new jobs and increased tax revenue."

Justice John Paul Stevens wrote the decision, which had the support of Kennedy, Souter, Ginsburg and Breyer. In her dissent, Justice Sandra Day O’Connor wrote:

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded -- i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public -- in the process.

For any liberals who may be reading this, take careful note of which justices chose to defend the rights of the individual homeowner (the little guy), and which ones took the side of the pharmaceutical giant Pfizer.

Discussions - 34 Comments

This case in an abomination and a serious blow to anyone who believes in liberty.

A serious blow to private property? Well, I guess it all depends on whose private property we’re talking about. Surely that icon of American free enterprise, Wal-Mart (and others like them), will be most pleased with this decision. And for the most part I’ve never thought that any of the Supreme Court justices give a rat’s ___ about "the little guy."

I don’t give a damn what Wal-Mart thinks about this case--there’s no more justice in giving Wal-Mart stolen property than there is in giving it to Pfizer or to anyone else. And, frankly, I don’t give a rat’s you-know-what for the little guy, either, except when he happens to be getting screwed. What’s more, I don’t have any particular dislike of corporate giants, except when they happen to be doing the screwing.


Maybe our legislature can pass a Constitutional Ammendment to address this perversion of Eminent Domain, rather than dealing with things like this.

"In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights...That is not a a just government, not is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest."

-Madison March 29, 1792.

Is it just me, or does seizure of one class for the benefits of another (and this is direct seizure) not fall under Madison’s understandning of arbitrariness?

This case is bigger than the ’little man.’ Private property enacts our natural rights. Without such, there is no security, and thus, no possibility of happiness, let alone the pursuit of it.

I must agree that this is indeed a travesty. When I came across the news earlier I was flabbergasted. I have frequently been disappointed with the Supreme Court but I had thought that surely they would not be so ignorant as to go this far. I suppose my naivity extended to the point of believing that the hallowed halls of the Supreme Court would hold at least a fraction of the historical knowledge of our fair nation. I, however, was clearly wrong. I fear for the future ramifications of this decision.

A constitutional Chernobyl. An amendment most certainly is called for, and Bush should capitalize on this outrageous decision when fighting for his SCOTUS nominee.

Perhaps this is another silver lining: Maybe it can be used to convince W. that we don’t need any more squishes (Gonzales, e.g.) on the Court.

I was somewhat disappointed with the decision, but given the Court’s position in Midkiff (allowing Hawaii to force large landowners to sell their land to renters) was not surprised. We should not completely lose hope. State constitutions can always be more restrictive than the federal constitution regarding eminent domain (e.d.). All the Court decided was that the federal constitution does not forbid it; the decision does not require states to allow this level of e.d. (Compare with Roe and abortion). Citizens of the states can pressure legislatures to pass legislation limiting state agencies from using their e.d. powers, or they may seek state constitutional amendments restricting exercise of e.d. An excellent example, sort of, is Poletown and the Michigan Supreme Court. I forget the case that overturned Poletown, it was decided about a year or so ago, but the Michigan Court decided to restrict e.d. The current ruling might be better than a federal constitutional prohibition because it allows individual states to choose the level of e.d. they will exercise. I suggest that this case makes a lot more sense in the Northeast (tightly packed urban centers, little space to expand), than the midwest or the west. It reminds me of Lincoln’s ideas about federalism, about cranberries, etc. Also, since the 5th amendment as originally written applies to the federal government and not the states, it seems this decision is certainly in tune with originalist understanding. I assume modern e.d. restrictions apply to states via the 14th amendment, and favor keeping that as narrow as possible in order to preserve some sort of federalism.

I believe what is worrisome about this decision is that the commerce clause is so broad, and the Federal government supreme, that it can use eminent domain powers to promote commerce regardless of state laws or constitutions. I am not very happy with what will probably happen.

I saw your expanded post at Claremont, David, and I disagree; Bush and Gonzales go way back, and there is no doubt he will get on the Court. Bush may believe he can use him as a trump card to sooth liberal angst via their abuse of the filibuster, but this only bolsters the fact that Gonzales is a shoe-in for the high court. No amount of conservative voter cajoling is going to change this.

As to Chernobyl? Yeah, this ruling is going to have quite a bit of fallout. It dwarfs Lawrence v. Texas, which I thought was the worst since Dred Scott. Which give me some pause... perhaps The People will again speak, and thus stifle this Edith.

This is the end of the American Revolution - it was a glorious run. The "Supreme" Court has decided in the last 12 months to restrict free speech around the time of an election (the McCain Feingold Endangered Incumbent Protection Act) and now they have destroyed the right of the citizen to be secure in his own property.

The American Revolution was about establishing a government whose first duty was to protect the rights of the governed; this was the purpose for which our late Republic was founded. Our history was supposed to have been the story of the evolution of that ideal into a reality which included all races and both sexes. We came pretty close, but the logic implicit in this decision shows our failure is decisive and final. This shocking decision effectively holds that when an individual citizen owns property but fails to maximize taxable revenue to the government’s satisfaction, his property can be CONFISCATED - indeed stolen, and given to someone who can provide the government with the revenue to which it feels entitled. Thus the government - far from protecting the rights of the citizen - has become an end in itself. The rights of the people are suffered only insofar as they do not interfere with big government’s "need" for more revenue.

Furthermore this connection between big business and big government, be it state, national, or local, has cut us very much adrift from the founding economic ideas not only of Jefferson, but even of Hamilton. The arrangement between the government and big business in this case most closely resembles the economic ideas not of any participant in the English or Scottish Enlightenment, but of thugs like Mussolini and Deng Xiao Ping. Private property can continue to be held only if the property holder understands that the state’s priorities are absolute and come first.

I cannot help but add that anyone who thinks that over the long term state constitutions or state courts will protect the citizen from the appalling license granted by this decision fell asleep during the Wilson administration and has yet to wake up. It may make some of us feel better to point to one isolated Michigan decision. However, you cannot really believe that once the Supremes decide it is ok for any level of government to steal from Peter to enhance both big donor Paul’s revenue and the local or state tax base, any more government decisions curtailing such confiscations will be handed down. This is it. It is over.

I went to sleep in America, and woke up in a banana republic. I will now render the Federal and State governments the same respect I would offer any other dangerous criminal enterprise - fear and a healthy distance. My loyalty is now to the idea of America, not to the corporatist tyranny which took its place. To the bill of Rights, not the whims of courts. Now that classically liberal politics have been rendered impotent by an unlimited and unstoppable all-encompassing state, I join George Orwell, at least emotionally, as a "Tory Anarchist."

All I case say is "Thank you, Justice Kennedy." What an could anyone think that allowing government to steal for Peter to pay Paul is Constitutional??? Again we see that the Constitution itself is flawed...the Imperial Judiciary really must be stopped in some fashion.

The last few posts seem somewhat hysterical. The people owning condemned property will be paid the market value of their property. Market value is not a very precise measure of value in these instances, since the sale is forced (no holding out for a better price), the price does not reflect sentimental attachment to property (the owner is forced to accept less than what he would demand), but it is REALLY stretching it to claim the property is being stolen. I imagine regimes such as the USSR and China did not pay property owners when they siezed property, instead the property owners were murdered or thrown in prison. Because American governments have to pay just compensation there is some limit to the amount of property governments can condemn through e.d. It is somewhat ironic that O’Connor wrote the dissent since she wrote the majority opinion in Midkiff, the decision where the Court said it was perfectly acceptable for the state to transfer land from the rich to the poor.

Normally, the conservative approach would be not to interfere in the relationship between residents and their local governments, but the 14th Amendment was written to provide relief from violations of fundamental rights by the states. While the courts are normally the agents of relief, nothing stops Congress from wading in.

The Court in New London did not set a ban on more restrictive definitions of public use. Rather it agreed with the Connecticut Supreme Court that nothing in precedents, the Constitution or Federal or Connecticut law prevented New London from defining public use in the way it did.

Had there been Federal guidance on the matter, the Court might have come to a different conclusion. Article III, Section 2 gives Congress the right to guide the courts in particular matters, to wit, "...the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." This is a clear warrant for Congress to micromanage the courts as it sees fit.

The Constitution is silent on the definition of "public use." Congress could explicitly define public use and require the courts to use this defintion in its deliberations. This is a perfectly normal thing to do and is completely consistent with separation of powers. It has further support in Madison’s words inveighing against "arbitrary seizures of one class of citizens for the service of the rest."

With such a definition in place, city attorneys would issue opinions to local elected officials that would put a quick end to such seizures. Those that didn’t would lose in court.

These posts are not the least hysterical, in fact I wonder what it would take for you to become alarmed?

Fair market value is not any kind of protection or even a buffer for the targeted property owner. In fact, fair market value is determined by the government - which is a conflict of interest so elementary that in a conservative forum of educated people I am exasperated to have to point that out. Furthermore, anyone who understands the implications of the supremes’ near blanket approval of land confiscation will likely have their inclination to appeal gutted - thus your pre-emptive surrender, repeated over and over every time Walgreens has spotted a good looking corner. Indeed the liklihood of any appeal suceeding against forcible confiscation of land is slim, and this will mean that any land lusted after by an interest intertwined with federal, state or local government will have its value drop before its "fair market value" is established - precisely because the court has weakened any possible resistence to E.D. In this way the ability of the land owner to negotiate is destroyed, and fair market value is nothing but the cash hangover from the omnipotent state’s indulgence in coercion.

On some level your post reflects a basic understanding of this, and yet you use the phrase "just compensation" only a few sentences later?? Which is it?? How can you fail to see this? Do you believe that price is set in some economic equivalent of a hermetically sealed room - do prices reflect abstract values floating in a vacuum? Surely you know better - your post reflects this. This being the case, how can you use a phrase like "just compensation?" No compensation rendered by a coercive state in the process of robbing Peter to pay not only Paul, but also itself, can possibly be just. THE COERCION IS MORE OFFENSIVE THAN THE LOSS OF PROPERTY, WHATEVER THE "COMPENSATION."

Furthermore, ED used to further private interests IS THEFT. If I come up to your house with a rifle, evict you, pay you more or less what your house was worth (probably less), then hand the lot over to McDonalds, sit back, and collect 10% of their profits for the next 12 years, I have still STOLEN your land. I have violated your will, you who had a right to live unmolested in your home according to Bill of Rights. Furthermore, I have benefitted and will continue to benefit long after your one-time payment. So will McDonalds. Too bad for you, huh? Especially if you liked living there.

This government was supposed to be dedicated to limiting coercion, not making the first resort in fiscal policy. Armed robbery does not have to be accompanied by homicide for it to be illegal and immoral, so your USSR comparison is silly. We as American citizens are supposed to be appalled by this level of vicious state abuse of power, rather than indulging in the opportunity to feel worldly by accepting it.

Comments 12 and 14 by wm show a grasp of our foundation culture, and how we are letting this slip away. In his excellent comments wm implies, but does not directly say, the most horrific aspect of the Court’s decision: it legitimizes statism. The private gain aspect, despicable as it is, is merely salt to the actual wound. The current trends in land use planning, where the state and counties dictate, by a system of financial sanctions, to a township the number, type and density of its dwellings is the sort of social engineering we have always associated with socialist, statist regimes. And they are generic mandates: no tolerance for diversity there! Single family homes, craftsmen, Mom and Pop stores -- any can be declared "blighted", simply by not having enough concentration of population. This is a value judgment on the government’s part, suppposedly on an economic basis, but having a frightening philosophical underlay. What next? In the future will they take a man’s wife away ("under-utilized") because she chooses to stay home? (And not please the tax man by going out to work, or the social engineers because her child won’t need the state-run mandatory preschool, where it should learn thatits nuclear family is merely in loco parentis for the State?

As a conservative I would stoutly defend the right of corporations to compete in the marketplace for a parcel of land, but for the government to act as a cat’s paw for the big boys seems less a good capitalistic competition and more like a rigged game. From now on, until this poor decision has been put to rest, the average citizen will be feeling like young peasants on their wedding night -- uneasily conscious of droit de seigneur.


I used just compensation because that is the phrase found in the 5th amendment of the federal constitution. All e.d. requires payment of "just compensation". Just compensation has been defined as the fair market value that an impartial person would pay for the property--a person without sentiment, etc.; much like Smith’s impartial spectator. Read the 5th amendment of the constitution and you will notice that it does not REQUIRE that land be used for public use or purposes before it is taken, but the Supreme Court had consistently ruled that it must be used for public purpose or use before e.d. can be used. With the current ruling it seems likely that the public use or purpose requirement has vanished, so now e.d. tracks the text of the 5th amendment. The Court is allowing legislatures to sort out the issue, like it stated in Midkiff, political pressure, not legal rules, is what will be used to keep e.d. in check.

As far as ending the desire for appeal, I believe you are mistaken. 5-4 rulings are always tempting targets for future litigation, and I believe Justice Kennedy wrote a concurrence stating there are limits to what e.d. he would allow. Furthermore, as stated in a previous post, the ruling does not require state courts to allow e.d., they can always hold that their state constitution or law does not allow that level of e.d., so people may appeal to state courts. Roe v. Wade was a 7-2 decision and that ruling did not stop citizens and states through citizens from challengeing it.

I have some misgivings about urban planning, but American cities have been planned for a very long time. Compare the streets of Washington, D.C. with London, England. It is much easier to drive in Washington. You seem to have a great concern for real estate, and it is true that freedom is necessarily restricted in direct proportion to restrictions on real estate, or loss of security of real estate, but owning real estate does not give one a license to do whatever he wants. I’m not allowed to own noisy dogs, or shoot off rockets, or throw wild parties, unless my activities do not disturb others. Furthermore, if you live in a modern subdivision, all sorts of entities own rights to your land. The government has a sidewalk easement, utility and cable companies have easements allowing them to run cables under or above ground, etc. Modern life simply does not allow the landowner much privacy unless you are lucky enough to live out in the country.

E.D. has been an important part of America for a long while. If you fly on planes (airports), or drive on the interstate, you have benefitted from a government planned project, one that took land from some unwilling landowners for a public use or purpose; in the case of the highways, faster traveling. The current ruling holds that it is up to the citizens of each state to draw the line between going faster (building roads) and increasing tax revenue (the current case), or some other end less connected with public use or purpose. Since land is a finite resource with no substitute, it will always be contentious, and it seems that perfectly free markets sometimes need some help.

I also disagree that these posts are in any sense hysterical. I do think David (#14) makes a good point, though...we should demand immediate relief from Congress. Obviously a new national law protecting property owners and strictly defining ED is necessary. We have a Republican Congress (nominally, in the case of the Senate, I admit)...this can be done.

Mr. Sparks,

you seem to be missing the essential aspect of why this decision is so harmful, and it is apparent in your comments. The fifth amendment says nothing about public purpose, it says public use. And I believe the Founders would agree that even public use must be narrowly defined. The idea of public purpose (as Justice Stevens so arrogantly points out in the opinion "has long ago been rejected by this Court.") gives access and license to the government to seize as it sees fit. So yes, your assessment of modern-day Urban planned cities is correct; this decision is consistent with the way in which cities may be ran...Too bad the Declaration reads:

"That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed..."

Planned cities and City Managers (appointed rulers) are the epitome of the Progressive movement, and, regardless of their efficiency, have not been elected, and therefore do not have the consent of the people, and therefore do not recognize equality properly understood, and therefore undermine the very principle of American Republicanism.

Justice Stevens statement concerns the narrow definition of "use" (not "purpose") that the Court rejected long ago. Unintended mistake.

... but a good post

Mr Bills:

I have to disagree with your theory about Republicanism. You seem to suggest that unless the official is elected he cannot legitmately rule. That would mean that the Supreme Court and large portions of the executive branch are not legitimate (no one elected Rice or Rumsfeld). I believe that city planners are usually chosen by city councils, and city councils are elected by the residents of the city. If you believe this is counter to American Republicanism then the federal constitution is counter to American Republicanism, which is a curious position to take, but plausible.

I remember Pickerington was going to hire a new city planner and they held hearings about it, and then the council probably chose the person that would most please their constituents. It seems reasonable, and in line with American politics.

As far as public use/purpose is concerned I offer the following for support of my position. Kelo involved a shopping, tourist area. Can you distinguish this public use (maybe it is not public?) from an airport. An airport is merely a place of business for airlines. Maybe we could distinguish the two by the degree of public use (more people use the airport), or the importance of the public use (airports are more important than buying Cheetos, or walking by a river), but such distinctions make for rules of law that are hard to impartially enforce. I do not want the Court deciding what is "important", I would rather have the citizens of the state of city use politics to make this judgment, and allow the taking if they feel it is important.

I am fearful of constitutional absolutes. Once they are laid down it is hard to undo them. Absolutes do not allow for the exercise of prudence. If we were to hold that the constitution only allows taking for a strictly public use, such as a police or fire station, city hall, etc. then it seems very likely that it would be impossible to build airports in the Northeast, or they would be like Dulles and miles away from the cities they serve. Such a rule would not allow for prudence.

Since land is a finite resource with no substitutes (other than building up) it seems likely that prudence will call for the occasional taking. It is up to politics to ensure that takings only happen when prudence/necessity requires it.

Mr. Sparks...the problems of determining what is and is not legitimate "public use" can be thorny, you are right. However, traditionally this has been interpreted to mean public infrastructure and public facilities. Airports and government-owned facilities (e.g., stadiums, convention centers) have generally been considered appropriate use of the takings clause. What is really needed is Federal legislation that allows ED to be used only for building or creating PUBLICALLY-OWNED assets. If we allow government to cherry-pick its preferred revenue sources and to determine this by robbing some people and giving to others (as Kelo v. New London does), essentially we all become milkcows of the government. Our fundamental property rights can be abused at any time if some nameless, faceless city functionary decides our use of the land doesn’t produce enough tax revenue. The founding fathers never ever meant for anything like this to be the case, nor does such a phenomenon belong in a free country. Surely you agree?


Again I note the conservative melt down concerning this case. Conservatives dislike it when the Court substitutes its preferences concerning thorny issues for the people’s will be creating a constitutional absolute, yet in this case that would apparently be acceptable. The end result of this case allows the people of each state to determine what amount of e.d. they wish the state to have, and the people of each community are probably always free to reject projects they do not wish to pursue.

You offer no critera to determine what a "use" is, other than history. I would suggest that history may not be your friend in this case. I remember reading how Columbus condemned a large, older area in order to build new homes. Was this in the 90s? No, it was in the 1950s. E.d. has been going on for quite a while.

I am uncertain how the founders thought of e.d., I do not know the common law of the era, but I am pretty certain they did not envision the Bill of Rights constraining the States. Even if they did, the Constitution would not have been ratified if the Constitution were to limit the states in such a way you claim the founders thought it would.

You suggest that the constitution would allow e.d. if the government owned the assets. Again, another conservative meltdown. It seems silly to suggest that we ought to allow a communist or socialist way of doing business, a state owned shopping mall for example, but not allow private use that benefits the public. It is also silly to suggest that the constitutionality depends on who owns the final product of the e.d. If the federal government were to hand over the TVA to private enterprise, something that would probably promote efficency, will the landowners from the 1930s, or their heirs, suddenly have the right to own part of the TVA, or shut it down? Your solution creates more problems than it solves. E.d. is political and should remain that way.

I agree that e.d. is subject to terrible abuses. If I were a council member I would not have voted to take away people’s homes. Merely because something is unjust, evil, or unwise, does not mean it is unconstitutional. States have any power they wish as long as it is constitutional. I have yet to see a textual argument that plausibly shows why States lack this power of e.d.

Well, I guess I’m more conservative than you think I am. I don’t think government should be creating new homes or new shops or even new stadiums, to be honest. Those things should be in the private economic sphere. Government should be dedicated to the GENERAL welfare, meaning the building and upkeep of streets, sewers, landfills, and so on, and then only because certain standardization is needed in the provision of such services. I admit, this is a philosophical (not a legal) stance.

What concerns me is the preservation of individual rights. It is NOT Ok for majorities to override individuals on the whim of a court or a government official. It is NOT Ok for the government to "redistribute" rights when it is supposed to be giving everyone equal protection under the law. And it is NOT Ok for government to use its monopoly on coercion (violence) in running its enterprises. Other businesses can’t do that, and neither should governments.

I realize I sound like a Libertarian here (ugh), but I’m not. I believe in balance between the individual and the collective, but the best way to preserve balance is the guarantee a few bedrock rights to the individual. As John Locke knew, property is the source of real power...this is a struggle central to the preservation of liberal democracy.


You keep alternating between a legal analysis (the constitution does or does not allow this) and a philosophical analysis (what is good, or should not be pursued).

I probably would agree with much of your philosophical analysis. I do disagree with your legal analysis and your desire to subvert the legal to the political. As I have repeatedly written, merely because something is unjust or unwise does not mean it is unconstitutional. The proper role of the Supreme Court should not be determining what the just policy is, rather it is to read the text of the constitution and determine what powers the people gave to the federal government, and what powers they did not give to the federal government. The Court ought to determine the allowable means, while politics ought to determine the allowable ends. Anything else gives the Court too much power. The Court ought to develop rules that are easy to apply in an impartial manner, that means using objective critera, and not subjective ideas such as importance of the e.d. project.

I just finished arguing with a guy who said much the same thing (are you any relation to "Judiciary Watcher?"). If you read Supreme Court decisions you quickly find they support their contentions using historical precendent...mouldy old stuff from English common law, for instance. I’m sorry, but law is always interpretable, we will never get away from that. Our people (and here I mean the Anglo-Saxon/Scots-Irish hegemony) have traditions that form the backdrop of our laws, and no Constitution (even one fashioned by the EU!) will be large enough to contain the common understandings of the people. When we interpret the Constitution there is absolutely no escape from bringing cultural meaning into that analysis. Sorry, but philosophy and politics go together.

As for your analysis of what courts should do, ends and means are generally inseparable. The Court has wontonly ignored the common meaning of words (e.g., "public use" somehow morphs into "the highest revenue producer"). The main reason that law is such a sleazy, two-faced profession is that we allow sophistry to replace logic and tradition. As for providing "easy rules," name one. See how fast I muddy the waters.

Mr. Sparks: Sorry for the absence. Since your reponse to my post has been discussed at some length, I will address only a couple of points. According to the Constitution, I believe that legislative officials cannot legitimately rule without being elected. The Constitution establishes the manner in which the Supreme Court will be appointed, and the Presidential Cabinet has been established since the Founding era. Neither are legislative bodies. Elected city councilman appointing city planners seems to be something different, however. It seems city planners attempt to use the law for a different end. That is, a Mayorial system is constructed in much the same manner ("seperation of powers" wise) as is the Federal Government. It is republican in form. City planners, however, aim to construct a city according to contingencies, conditions, and the state of the times. While I don’t disagree with this in principle, it seems incomplete. Republican forms of government may do the same within a context of absolutes ("We find these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness"). It appears, then, that the difference lies in the different ultimate ends: while the end of republican forms of government is to secure the ’absolute’ natural rights first, the end of city management is rather to run the city well first. Without these first principles in mind, a democracy is not necessarily a good one. We are constitutionally unable to ’vote ourselves rich’ or ’vote ourselves slaves,’ because they infringe upon the natural rights of all men. Tyranny of a majority (or minority) is always a legitimate threat to the American way of life. City Management is progressive in nature because it believes these principles come (if at all) second to conditionals; that different times call for different rights. I believe this understanding of politics is wrong and harmful. I am not fearful of constitutional absolutes, and I think your understanding of prudence is perhaps incomplete. It seems prudence is not possible without wisdom. If wisdom is knowledge of the unchangeable things (absolutes), then prudence is not possible outside of an order of absolutes. The absolute moral principles of the Declaration institute Constitutional absolutes and construct the foundation for the American political regime. Anyways, those are my thoughts for now. Sorry to go the political philosophy route.

Mr Bills:

Thanks for the thoughtful response. I find it interesting that you note the selection of the Supreme Court has a constitutional mandate, while merely giving the executive agencies a historical justification. You quickly pass that by because you do not want to claim they are illegitmate.

We can dispute about definitions, but if we define law as rules governing the conduct of others, then it is absolutly false that the Supreme Court and Executive agencies do not make law. Common law is judge made law, and although statutory law is a modern trend, it too has developed a common law feel (like the Civil Rights Act of 1964).

By your principles all common law is illegitimate, which is a major problem because much of state law is still common law, and federal courts are required to follow state law in diversity cases (cases between citizens of different states). By your principles any judgment according to common law is tyranny.

Furthermore, federal agencies make numerous regulations (laws). While we can argue about whether Congress authorizes a general law, and then lets agencies work out smaller details, this argument would be irrelevant, because your principle does not depend on a matter of degree; according to it any law made without involvment of the people is illegitimate.

Classifying things according to their ends shows a telological bias, which is fine, but I doubt if either of us has enough knowledge in metaphysics to determine whether the "isness" of a thing depends on its end or its components. Arguing that a government is not Republican because it does not pursue certain goals is very Aristotleian (recall his classification of regimes based on the form of justice they pursue), but I think it is equally plausible that government should be defined by structures. Rome did not cease being a republic because the goals it pursued changed, it ceased being a republic when one man’s will ruled. PreAugustus and PostAugustus Rome purused the same goals: give corn to the plebs, gain land and gold, etc. Unless you can offer a solid basis for classifying governments by the ends they pursue I think your argument is dubious and unpersuasive to the modern ear (which might be a good thing). Furthermore, your distinction between securing natural rights and running the city well seems wrong. If natural rights are good then the well run city would pursue them, if they are not then the well run city would not. Are you willing to cling to natural rights even if they were not the ultimate good?

I think your discussion of prudence completely misses the mark. Aristotle defines prudence as practical wisdom, it is deliberating about how to pursue what is good (for the moment) for people. The Good is a contentious issue, but I think anyone who gets too involved in chasing the Good will likely produce more harm than good. I think Malthus had it completely right when he said that scaricity was the result of original sin, and that all sins flow from scarcity. There are certainty instances when one can only choose the lesser of two evils because of scarcity, and absolutes do not allow this, and given that scarcity exists (espically concerning land) prudence may often pick an evil path in order to avoid the greater evil. Any understanding of prudence that seeks to chain it down to abstract notions of Good misunderstands the nature of prudence, which could be summed up as "making the best of a bad situation." Pursuing a greater evil because of a belief in an abstract absolute is not prudence. Compare Burke with the French Revolution and Communism (both pursued abstract absolutes, and both killed many people).

You will read an excellent example of prudence in your Criminal Law class; the famous case of Dudley v. Stephens. I forget who is who, but three guys were stranded at sea, and did not expect to live more than three days. They were miles from land, and sea lanes, and had no food or water. One of the three men was very sick, and would probably die within a day or two. The other two men killed and ate him in order to live for a couple of extra days. They survived and were picked up by a passing boat. When they got back to England they were prosecuted for murder, which was a capital offense. One of the men who had murdered had a wife and numerous young children. They were convicted, but the Queen pardoned them. This is an example of prudence, anyone who would favor killing either man is a very hard sort of person. I suggest there is no abstract principal of good here (unless you think some lives are worth more than others), rather there was a choosing of the lesser evil, for all parties involved. The US Supreme Court also ruled in the mid 1800s in a maritime case that it might be acceptable to kill people if the ship were wrecked. Both are excellent examples of prudence.

Basing legal arguments on the Declaration seems unwise. The Declaration is pretty vague to be used as a legal document. It claims all people have the right to life, liberty, and the pursuit of happiness (notice no property). I think allowing judges to define life, liberty, and happiness is what got us into the current political judicial system. It is up to citizens to define what acceptable forms of life, liberty, and happiness are, and up to judges to faithfully apply such concepts to cases. My final example: Does right to life mean no abortions (maybe, that is what the German high court ruled), does it mean people have a right to healthcare (federally paid), does liberty mean people have the right to steal or kill, use drugs, or prostitute themselves, and could liberty include homosexual marriage, or would that fall under the right to pursue happiness? Do we want judges defining acceptable forms of happiness? The Declaration is useful for framing political arguments (as Lincoln did); the people can decide which aspects of life, liberty, and happiness they wish to guarentee, not the Court (protection of property rights by the Court is what led to Dred Scott); I offer that anything less is not in accord with American Republicanism, a road your reverance for the Declaration as a legal document would take us.

Steve...Scalia agrees. The Declaration is not a legal will not help us govern. On the other hand, all those rules and regulations enacted by the Executive can easily get out of hand and begin to violate the spirit of our culture and our law, don’t you agree? I think that is precisely what has happened in Kelo -- state and local agencies have grown bold, and the Supreme Court no longer has the will to enforce the core of our Constitution (and I think this all started with Lincoln and the Civil War, not some decision in the 1950s).

And I’ve always cursed Thomas Jefferson for "life, liberty and the pursuit of happiness." If you are going to plagiarize John Locke, then do so properly! Without property all the rest is in jeopardy.


Finally something we agree on. I agree about the Civil War nationalizing America. I think Jefferson was too wacky to include property, although perhaps he assumed that property was essential to the pursuit of happiness and did not have to be included. I do not know the history of the document well enough to know.

I am hestitant to endorse natural rights jurisprudence because "nature" means different things to different people. It seems very arbitrary to me. Scalia tries to use the text of statutes, etc. but it seems that he often manipulates the text in order to reach the decision he favors. I was disappointed with Scalia’s lack of principle in Raich, although the case was probably rightly decided.

Mr. Sparks: This will be a bit lengthy, so bear with me. I give Executive offices (agencies?) a historical justification because Washington established a precedent by creating cabinet offices; and, as he was the man (along with Jackson and Lincoln) who most set into stone the direction the Executive Office would take, I think it sits well within Constitutional grounds (lawyers are big with historical precedent, no?) You say "judge-made law is common law" and then attack my position concerning legislative bodies and consent (with election) accordingly by claiming I have cornered myself into claiming it must be tyrannical. I’ll only respond with a brief description of the Seperation of Powers: We are talking about America, and the Judicial’s capacity is to interpret the law made by elected legislative bodies. Their interpretation has an effect on the law. It is Constitutional, and therefore consistent with my stance. Are Execturive offices law makers? You say "excutive agencies make numerous regulations (laws)," The Executive Office enforce the laws, from which regulations occur, which effect the law’s enforcement, and therefore change the nature by which laws effect people. Constitutional, and therefore consistent with my argument from before.

Your description concerning the Roman Empire is incomplete at best. I believe the Roman Republic did have some concern over the purpose of its regime (note Cicero). And while it might require a metaphysical discussion in order to determine whether the "isness" of a thing depends on it ends or its components, do believe the two are exclusive to one another? I doubt such is the case, especially in real life. The purpose of a regime probably is significant to the question. Speaking of metaphysics, the Declaration, I maintain, is a metaphysical foundation for the American political regime. In plain words it establishes the moral purpose of America. Therefore, even though everyone may have an idea of the good, their ideas and whims, if contrary to the Declaration, have no place in American politics. Your brief discussion of natural rights, also, is incomplete. Natural right and natural law (according to the Declaration, but see also Locke and Aquinas) descend from the natural order of the world. Regardless of whether they are some "ultimate good" they are the reality in which we operate (and, if not, the reality which the Declaration grants us), and the political foundation from which we work.

You say, "Basing legal arguments on the Declaration seems unwise." It is not what we ought to begin with, because the Constitution is the document by which the principles of the Declaration were to be enacted (see Federalist Papers). However, when the law and its interpretation are taken so far as to disrupt the basic principles (life, liberty, pursuit of happiness), then the Declaration must be referenced, so that the cornerstone of the regime is not undermined. Check out Harry V. Jaffa’s "The False Prophets of Modern Conservatism"
here You also say "(notice no property)" The phrase of "pursuit of happiness" does not exist in Locke’s treatises, but it does exist in his Essay Concerning Human Understanding as well as in The Reasonableness of Christainity. Edward Erler argues, "For Locke, the pursuit of happiness, because it implies a irght to possess beyond what is necessary for mere life, is the ground of individual liberty—it is also the ground of political liberty...This means that civil society must, above all, provide the security for the external goods." It certainly seems Locke understood the security of property to be necessary for the the pursuit of happiness.

Also, I hope you’re not being serious when you say, "It is useful for making political speeches (Lincoln)," as if that is all it is good for. Do you know how belittling that is to the greatest President in American history? To think, after reading his letter to Horace Greeley of 1862, that Lincoln used the Declaration for merely rhetorical purposes is both ridiculous and insulting. Don’t get me wrong, it is good for political speeches, but it is better for maintaing "the last best hope on Earth."

Now, you’re questions pertaining to how to implement the Declaration is a good one. Ah, that’s the rub, eh? Well, it is. The Constitution is supposed to be the document that allows us to do so, but that doesn’t mean it will be easy. Still, it is easily preferable to the alternative: an endless subjective bickering and ideological mudslinging with no basis in the metaphysical foundation of our great Republic.

P.S. You’re treatment of democracy seems to allow for as much majority tyranny (see Federalist Papers as well as Polybius) as any oligarchical or monarchical one.

Also, prudence is supposed to be knowledge of the changeable things, or, as you put it, "making the best of a bad situation." In regards to my comment above. Is making correct decisions according to context possible without wisdom?

Or, can you name me more than three prudent American Presidents? According to your definition, most would be, maybe all. Politically savvy politicians know how to speak to people and act (at least to their advantage in getting people to agree with them) in different contexts. Does that make them prudent? I would argue that it does not. One must have wisdom (knowledge of the unchangeable things) in order to act prudently, according to context. I don’t think your understanding of absolutes as disallowing action in some situations (the boat example) is correct. The combination of wisdom and prudence would allow for action in such situations according to necessity but in relation to the Good.

Mr Bills:

I would encourage you to read comment 19 in this thread. That comment started our discussion of how to categorize governments. You claimed city planners might be efficient (an end), but this did not matter because they were not properly elected (a procedural or structural criticism). Now you are claiming that the ends , not the structure are what determine whether or not a government action is legitimate. Why not state efficiency is not a legitimate goal in itself, and claim that government actions are Republican when they pursue republican ends in a certain republican structured way. We could both agree with that definition, although we might disagree about acceptable ends.

I think it is absurd for you to claim that only the ends, and not the structure of the government matters. No one would classify a dictatorship that followed republican ends as a republic. Republic comes from the latin phrase Res Publica, which roughly means "The Thing of the People"; clearly the citizens have to be involved in some fashion in order for a government to be a republic, this of course is a structural necessity, which is what I have argued all along.

I think your arguments about modern day judicial and executive lawmaking powers being legitimate according to your definition of legitimacy (see comment 19) are murky at best and circular at worst. Basically your argument boils down to "they are legitimate because they are constituional," or, they are legitimate because they are legitimate. It is fact that the Court enforced the nondelgation doctrine (legislative cannot grant power to executive agencies) for a long time, until about the 1930s or 1940s, because the needs of the modern state made such a doctrine impossible to maintain. You imply that the modern way of doing things easily passes your legitimacy test, but I do not think it does.

As far as Cicero and the Roman Republic, could you offer some concrete aims the government pursued other than the statement I am wrong? To my knowledge, Cicero’s main actions included stopping the conspiracy of Cateline (who aimed for one man rule), trying to unite the Knights and the Senatorial classes against the Plebians so one man rule would be more difficult because there would be more people against one man (Senate and Knights), plus the Knights were the administrative officials of the Republic, one man could not rule easily without their support, and Cicero bemoaned the fate of the Republic and his life when Ceasar became dictator for life. Cicero then gave his Phillipics in order to stop Antony and support Octavian, whom he thought he could control. All of these goals are structural, not end specific. The one nonstructural end Cicero did have was a deep desire for glory, but I doubt if pursuing glory makes for a republic.

As far as our metaphysics debate, I suggest that the question of whether isness depends on potentiality or componenets is extremely crucial (and perhaps the most important philosophical question in modern times). The abortion debate centers around the question: people against abortion believing the fetus’ potentiality for rationality makes it human, while the proabortion people believe that since it lacks several attributes of a human (components), it is not a human. The recent Florida case concerning Ms. Schavio fell along similar metaphysical grounds: some people believed she was human because she had the potential to have reason, while others felt she was not human because she lacked several components making a thing human.

You present natural rights as an easy pilar of jurisprudence, but this is a mistaken belief if we wish judges to have some impartial rules by which to judge specific cases. Natural rights could only be a pilar if everyone agreed what was natural, which they do not, therefore such judgments are based on the judge’s belief about what constitutes nature. Natural rights would work if the different conceptions of nature were closely related, but they are radically different. Aristotle (Aquinas?) viewed nature as the essence of a thing implanted in it by God (through some supreme idea). Anything contrary to this nature was unnatural and bad. Aristotle’s famous example of this is in his Politics where he claims that it is unnatural to make a shoe for purposes of trade, since the idea of shoe is a foot covering for purposes of comfortable movement. I do not think this idea of nature would work because judges ought not to philosophically determine the proper use of each thing. Hobbes’ view of nature was that man’s supreme good was to stay alive, and he ought to do anything he could to further his life. This view of natural right would make enforcing certain laws very difficult. Locke’s view of nature was that God created man with certain duties (he had to stay alive) and his rights flowed from these duties. Of course if there is no God then Locke’s natural system quickly falls apart, and becomes much like Hobbes. I am uncertain how any judge could decide what nature was, and what rights were natural. Judges can use natural right to cloak their arbitrary policy preferences with high sounding phrases. Since hardly anyone agrees on what is natural, and what ought to be protected, this would quickly result in loss of confidence in the judiciary. It is far better for judges to faithfully interpret the text of a law without any philosophical baggage.

You suggest that no American or law has the right to do anything contrary to the Declaration, which sounds fine, but because the Declaration is so broad it is impossible to determine what actions and laws are contrary to it. You have completely avoided my argument, that the Declaration is too vague to use as a legal instrument. You are assuming what you ought to argue. Prove to me that the Declaration has some definite meaning that all citizens (or at least a governing majority) believe in, and these believes could control how law is interpreted in such a way that a majority of the people would think such a judgment was impartial.

I am unsure why you are so offended with the thought that Lincoln used the Declaration in a political way. His 1862 letter to Greely confirms my view of the matter. He states his utmost concern is not freedom, but the Union. Throughout his political career he used the Declaration to build political support for freeing the slaves through amendment in the slave states that were still in the union, and used his war power to free slaves in rebelling states. Even when fighting against Douglas’ popular soverignty he did not suggest that the people of each state did not have a legal right to decide whether slavery could exist, rather he argued that the did not have a moral right to do so, and that the Federal government had the legal power to outlaw it in the territories. He used the Declaration to make people support his policies, he did write amicus briefs with detailed arguments concerning the Declaration: that is the difference between a legal and political use of the document.

You admit it is hard to implement the Declaration, but declare it better than the alternative, arguments without foundation. Again, you have assumed what you ought to argue. My argument was that the Declaration is so broad that it is subjective (or might as well be), and does not provide a basis for objective judgment (what judges ought to do). The phrase "life, liberty, and the pursuit of happiness" tells us very little in a legal sense. It is useful for appealing to the spirit of the regime for promoting policies, but I do not see how it could be used in a legal sense. Can you offer any examples of where the Declaration was used in an important court case? The 14th amendment is similar to the Declaration, and it is probably the area of constitutional law that is the most subjective, and therefore upsetting to people. I predict any legal use of the Declaration would result in something very similar to substantive due process.

I also do not understand your argument concerning prudence. Pleas explain to me how absolutes (do not kill) would still allow prudence in the boat situtation? I think the main concern of prudence is ensuring that people are not killed, anything other than that is probably negotiable. Note I am not stating that prudence must always be followed, or that is an absolute, I suppose that would be imprudent.

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